Supreme Court Says Congress May Re-Copyright Public Domain Works

[HarryT]

Originally Posted by Ralph Sir Edward

No, just an impossible one. The large corporations woh own/control valuable I.P. will never let the US truly follow Berne because they will lose property to the public domain.

If you want to get the same protection, you should be following the guideline upon such protection is based on. It's both, not either/or.

I'd have no beef with the ruling if, (and I repeat IF) the US was truly following the text of Berne in defining it copyrights. It doesn't, and it won't!

Is the fact that other aspects of US copyright law are unfair any reason to deny a simple reciprocity agreement such as this, which (IMHO) IS fair by anybody's standards?

[Hellmark]

Originally Posted by Ralph Sir Edward

The only other legal argument that I am aware of that's left and I could be wrong (IANAL) would be to sue the members of RIAA and MPAA under the inverse taking clause under the Court of Claims. (another piece of obscure US law) tha legal argument would be that the government took the property (i.e. the copyrights extended) from the individuals who would have received it upon expiration of copyright. Inasmuch as this is normally reserved for sue the government for taking, you probably couldn't actually get at the copyright holders, but you might get Congresses attention, for the next time around... (Lots of mineral rights cliams are of this nature...)

The problem is, that the idea of public domain is that no one owns it. How can no one sue anyone?

[Greg Anos]

Originally Posted by Hellmark

The problem is, that the idea of public domain is that no one owns it. How can no one sue anyone?

First and foremost IANAL, repeat IANAL. (IANAL = I Am Not A Lawyer)

Ok, here is the potential argument.

I, as a member of the public, have an ownership right in any public domain item. I can do anything I want with it, even charge for a copy. (Nobody has to buy my copy, they can get another one free elsewhere, but I have the right to sell it.) What I don’t have to do is pay anybody else (i.e. the original rights owner) anything to do this. Nor does anybody have to pay me for a copy (that didn’t come through me).

Therefore, in terms of public domain ownership, I have standing. (Note this applies to the recent SOTUS foreign PD ruling as well, if any lawyers are interested…) (Also note, everybody in the US has standing. Whether or not a class-action lawsuit can be entered into the Court of Claims is unknown.)

So…If an item was to go into the public domain, and Congress passed an extension increasing the copyright length, I argue that that constitutes a taking of property. I was denied my property as of the date it should have gone into the public domain and become my property. While Congress has the right to take my property, via eminent domain, it must pay fair compensation for the property to the person it was taken from. I was not paid for my loss. Inasmuch as the property was taken first, without any compensation being paid, this is legally referred to as an “inverse taking”. The claim goes to a special court in D.C. called the Court of Claims. There is a statue of limitations involved. This is normally reserved for US Government takings, however the 2005 SOTUS ruling about government taking from one private party and giving it to another may open this Court a little wider. (No precedent set yet that I am aware of).

Now the issue of statute of limitation rears its ugly head. The legal question of whether the ticker would start when Congress passed the extension (and it is signed into law) or whether it starts when an Item would have gone into the Public Domain is undetermined. The case law (particularly concerning mineral rights takings) would be relevant. (Mineral right can be taken separately from surface rights and at different times. Therefore they can have different taking dates as far as the statute of limitations is concerned. In addition, the when of a subsurface taking can be construed to be at various points, such as when access is denied, surface is taken, all sort of different definitions.) I would argue that the time start at the actual time of the taking, i.e. when the item would have fallen into the public domain, rather than when the law was passed, inasmuch as the law could have been changed back (or otherwise modified to my benefit) so that no taking actually occurred until the property at question actually was seized by the extension. Any case should make claims at the 56 year boundary, as well as the life + 50 boundary, to prevent the case from being thrown out due to those limitations being argued as being past or not occurring yet. (Either way ½ of the claim gets thrown out, but the other half remains, no matter what the court rules…)

The question of did I actually lose something that has no value when I receive it. I would note the cost of paying for material I should have received for free is a loss, not to mention the potential fines and imprisonment claims by the recipient of my property also could as costs I would be potentially subject to are losses. There is standing, in my opinion. (What a court will think is another matter.)

If this sounds like I have experience with the Court of Claims, I have. I refuse to divulge more due to privacy.

Sorry about the length, but this point can’t be covered any more concisely.

Oh yes, one more thing about the Court of Claims, if you win you not only get the money, but interest from the date of suit, no matter how long the suit takes…;

[Kali Yuga]

Originally Posted by Ralph Sir Edward

I, as a member of the public, have an ownership right in any public domain item.... Therefore, in terms of public domain ownership, I have standing.

You might have standing, but it's not because you "own" any part of PD works.

"Public domain" means that there is no longer any protection on that particular bit of intellectual property. No one owns or controls it any more. "Anyone has free access to the public domain, but no one, after the copyright term has expired, acquires ownership rights in the once-protected works." (Golan v Holder, p28)

I don't believe there is a statute of limitation applicable here either.

However, if you had an organization that distributes PD works, you can say "my organization is affected by putting works into PD." Thus potentially anyone whose use or distribution of PD could have brought the case, it just happened to be this particular group of conductors and educators. It's better for the case, since they can point to tangible negative effects of the URAA copyright reinstatements.

[Kali Yuga]

Originally Posted by Ginger Irving

Who exactly gets to own the work of millions of long-dead authors?

If the author is dead, then it goes to their estate.

Originally Posted by Ginger Irving

The ownership lawsuits alone, for millions and millions of works, will be an epic, chaotic nightmare to behold.

Not really. At least some of these people are already collecting their royalties or similar payments. The works put back under copyright have international protection -- it's just that due to some quirks in previous US copyright laws, the US did not offer them protection.

Originally Posted by Ginger Irving

What if the author has no heirs, or nobody wants to claim ownership of their work?

Then it's an orphaned work. There's a lot of that around, and no consensus yet on how to handle them. On one hand, it's a public good to make those works available again; on the other, you don't want to create a massive loophole that lets people infringe on active copyrights.

[Ginger Irving]

Originally Posted by Kali Yuga

Not really. At least some of these people are already collecting their royalties or similar payments.

We'll agree to disagree here. It seems obvious to me that there will be a terrible mess created by the SCOTUS. Not Citizens United-level SUPERPAC screwed up, but still a major mess. Amplified by the fact that some newly-minted IP owners will have no idea that they are! How will all the millions of potential heirs be notified of their new status? Oh, right. They won't. This creates fertile hunting grounds for the unscrupulous to take advantage of. It's a hard-wired mess in the making. Downplaying it doesn't solve it, and there is no carpet big enough to sweep it under and then walk away whistling.

Am I an heir? Are you? What mechanism is in place to let me know? Do I have to spend hundreds on a lawyer, just to find out I'm not? Now multiply my situation by millions and tell me that's not a mess.

Originally Posted by Kali Yuga

The works put back under copyright have international protection -- it's just that due to some quirks in previous US copyright laws, the US did not offer them protection.

Of course, those non-US rights holders could have put their works in the public domain as well, solving the problem from a different, and social-responsible, way. But, no.

Originally Posted by Kali Yuga

Then it's an orphaned work. There's a lot of that around, and no consensus yet on how to handle them. On one hand, it's a public good to make those works available again; on the other, you don't want to create a massive loophole that lets people infringe on active copyrights.

I'm not sure adding a ton of new orphans is particularly helpful in solving this conundrum...

It's a bad decision based on a bad international agreement. This situation should have been foreseen and handled at the onset.

[HarryT]

Originally Posted by Ginger Irving

It's a bad decision based on a bad international agreement. This situation should have been foreseen and handled at the onset.

Why is it a "bad decision" to grant foreign works the same protection that US works enjoy? Are such works somehow less deserving of protection, in your view?

[JD Gumby]

Originally Posted by HarryT

As has been repeatedly said, this is about bringing the US into compliance with the basic principle of the Berne Convention: that works published in other countries get same same protection in the US as do works published in the US. Does anyone think that this is an unfair principle?

For new works? No problem. For existing works that had already passed into the public domain under the old rules? Big problem.

[Kali Yuga]

Originally Posted by JD Gumby

For new works? No problem. For existing works that had already passed into the public domain under the old rules? Big problem.

Not really.

There are no Constitutional provisions that indicate that passing into public domain is a one-way street. PD is also a lack of protection, not a transfer of ownership.

There also isn't a requirement for people who previously acquired PD distribution of those works to destroy or give up their copies. The limitation is on redistribution.

E.g. the schools that previously performed "Peter and the Wolf" don't own back payments, they just can't perform it now without paying fees.

[Greg Anos]

Originally Posted by Kali Yuga

You might have standing, but it's not because you "own" any part of PD works.

"Public domain" means that there is no longer any protection on that particular bit of intellectual property. No one owns or controls it any more. "Anyone has free access to the public domain, but no one, after the copyright term has expired, acquires ownership rights in the once-protected works." (Golan v Holder, p28)

I don't believe there is a statute of limitation applicable here either.

However, if you had an organization that distributes PD works, you can say "my organization is affected by putting works into PD." Thus potentially anyone whose use or distribution of PD could have brought the case, it just happened to be this particular group of conductors and educators. It's better for the case, since they can point to tangible negative effects of the URAA copyright reinstatements.

I've been very busy, just had a change to look at the point you raised. If you look at the footnote on page 28 (Footnote 33) it butresses my claim. I quote it verbatum here.

"Congress recurrently adjusts copyright law to protectcategories of works once outside the law’s compass. For example, Congress broke new ground when it extended copyright protection to foreign works in 1891, Act of Mar.3, §13, 26 Stat. 1110; to dramatic works in 1856, Act ofAug. 18, 11 Stat. 138; to photographs and photographic negatives in 1865, Act of Mar. 3, §1, 13 Stat. 540; to motion pictures in 1912, Act of Aug. 24, 37 Stat. 488; to fixed sound recordings in 1972, Act of Oct. 15, 1971, 85 Stat. 391; and to architectural works in 1990, Architectural Works Copyright Protection Act, 104 Stat. 5133. And on several occasions, as recounted above, Congress protected works previously in the public domain, hence freely usable by the public. See supra, at 15–19. If Congress could grant protection to these works without hazarding heightened First Amendment scrutiny, then what free speech principle disarms it from protecting works prematurely cast into the public domain for reasons antithetical to the Berne Convention? 33 ——————

33 It was the Fifth Amendment’s Takings Clause—not the First Amendment—that Congress apparently perceived to be a potential check on its authority to protect works then freely available to the public. See URAA Joint Hearing 3 (statement of Rep. Hughes); id., at 121 (app. to statement of Lehman, Commerce Dept.); id., at 141 (statement of Shapiro, USTR); id., at 145 (statement of Christopher Schroeder, DOJ). The reliance-party protections supplied by §514, see supra,at 10–11, were meant to address such concerns. See URAA Joint Hearing 148–149 (prepared statement of Schroeder)."

Apparently in this decision, there is standing for a Taking Clause challenge, else they would not have included the footnote...

All Taking Clause challanges have a Statue of Limitation for filing the claim. It's either 5 or 7 years, I forget which...(After which you can't sue for the loss.)

[HarryT]

Thanks, Ralph - that's very interesting.

[Greg Anos]

Originally Posted by HarryT

Thanks, Ralph - that's very interesting.

You're welcome, Harry. We don't always agree on the details, but we both always try to listen.

Please note, a Taking Clause doesn't stop the copyright change, it merely says that Congress must pay for the fair value of the property taken. In the Golan case, there is a clear starting point for the taking, and the amount claimed by all copyright holders would be the value taken. Conceptually, quite cut and dried. How you would distribute the money, that's a more problematical issue...

However, it would cause copyright extension to no longer be "free" to the Congress granting them. They would have to be paid for. And then the very numbers that the MAFIAA used to claim all these piracy losses could then be used to value the Taking...

Heh, Heh, Heh....

[Kali Yuga]

RSE, you might want to read the entire section we're discussing (or the whole ruling), when you have the time.

The Takings Clause is mentioned because Congress was in fact concerned about it -- hence §514, the part under review in the case. To resolve this issue, the URAA stipulated that in order for the copyright to be restored, the foreign copyright holder had to file a notice to enforce their rights, either with the US Copyright office or the "reliance parties" (people who were distributing the material in question). The reliance parties had a one-year grace period to distribute existing copies. Further, anyone who made a derivative work while the content was in PD has to pay a royalty for continued use of the derivative works.

From what I can tell, the opinion views this as sufficient redress for the reliance parties and that "the judgment §514 expresses lies well within the ken of the political branches." The dissent in this particular case does not suggest that the Takings Clause is a valid reason to overturn this particular law, and it doesn't look like the petitioners invoked the Takings Clause either. They were pushing a First Amendment claim in regards to their claims of "vested rights."


Meanwhile: Section III B, which we are both quoting, pretty much shoots down the entire idea that a member of the public can have a "vested right" in a public domain work. Here's the summary:

Petitioners claim that First Amendment interests of a higher order are at stake because they—unlike their Eldred counterparts— enjoyed “vested rights” in works that had already entered the public domain. Their contentions depend on an argument already considered and rejected, namely, that the Constitution renders the public domain largely untouchable by Congress. Nothing in the historical record, subsequent congressional practice, or this Court’s jurisprudence warrants exceptional First Amendment solicitude for copyrighted works that were once in the public domain. Congress has several times adjusted copyright law to protect new categories of works as well as works previously in the public domain. Section 514, moreover, does not impose a blanket prohibition on public access. The question is whether would-be users of certain foreign works must pay for their desired use of the author’s expression, or else limit their exploitation to “fair use” of those works. By fully implementing Berne, Congress ensured that these works, like domestic and most other foreign works, would be governed by the same legal regime. Section 514 simply placed foreign works in the position they would have occupied if the current copyright regime had been in effect when those works were created and first published.

Again: Public domain is not a transfer ownership of the rights from the copyright holder to the public at large; it is the cessation of any and all rights, ownership and protection. Anybody can do whatever they want, without limit, to a work in the public domain precisely because no one owns it.

Nothing in the Constitution stipulates that works in the public domain must receive certain types of protection, or that entering public domain is a one-way process that is inviolate and cannot be undone. As such, it is up to Congress to decide how to handle public domain works -- and, if required, re-establish copyright, as long as it doesn't result in perpetual copyrights.

You may not like the idea that copyright can be re-established, but apparently in the US it's 100% Constitutional. If you want to change that, your only options are to convince Congress that public domain should be a permanent and irrevocable status, or to amend the Constitution.

[Greg Anos]

Originally Posted by Kali Yuga

RSE, you might want to read the entire section we're discussing (or the whole ruling), when you have the time.

The Takings Clause is mentioned because Congress was in fact concerned about it -- hence §514, the part under review in the case. To resolve this issue, the URAA stipulated that in order for the copyright to be restored, the foreign copyright holder had to file a notice to enforce their rights, either with the US Copyright office or the "reliance parties" (people who were distributing the material in question). The reliance parties had a one-year grace period to distribute existing copies. Further, anyone who made a derivative work while the content was in PD has to pay a royalty for continued use of the derivative works.

From what I can tell, the opinion views this as sufficient redress for the reliance parties and that "the judgment §514 expresses lies well within the ken of the political branches." The dissent in this particular case does not suggest that the Takings Clause is a valid reason to overturn this particular law, and it doesn't look like the petitioners invoked the Takings Clause either. They were pushing a First Amendment claim in regards to their claims of "vested rights."


Meanwhile: Section III B, which we are both quoting, pretty much shoots down the entire idea that a member of the public can have a "vested right" in a public domain work. Here's the summary:

Petitioners claim that First Amendment interests of a higher order are at stake because they—unlike their Eldred counterparts— enjoyed “vested rights” in works that had already entered the public domain. Their contentions depend on an argument already considered and rejected, namely, that the Constitution renders the public domain largely untouchable by Congress. Nothing in the historical record, subsequent congressional practice, or this Court’s jurisprudence warrants exceptional First Amendment solicitude for copyrighted works that were once in the public domain. Congress has several times adjusted copyright law to protect new categories of works as well as works previously in the public domain. Section 514, moreover, does not impose a blanket prohibition on public access. The question is whether would-be users of certain foreign works must pay for their desired use of the author’s expression, or else limit their exploitation to “fair use” of those works. By fully implementing Berne, Congress ensured that these works, like domestic and most other foreign works, would be governed by the same legal regime. Section 514 simply placed foreign works in the position they would have occupied if the current copyright regime had been in effect when those works were created and first published.

Again: Public domain is not a transfer ownership of the rights from the copyright holder to the public at large; it is the cessation of any and all rights, ownership and protection. Anybody can do whatever they want, without limit, to a work in the public domain precisely because no one owns it.

Nothing in the Constitution stipulates that works in the public domain must receive certain types of protection, or that entering public domain is a one-way process that is inviolate and cannot be undone. As such, it is up to Congress to decide how to handle public domain works -- and, if required, re-establish copyright, as long as it doesn't result in perpetual copyrights.

You may not like the idea that copyright can be re-established, but apparently in the US it's 100% Constitutional. If you want to change that, your only options are to convince Congress that public domain should be a permanent and irrevocable status, or to amend the Constitution.

You miss the point of the Taking Clause. Was something taken? Clearly, yes. What was taken? The public's right to freely access certain materials. It was given to certain holders for their explicit profit.

My point is not whether Congress has that right. Eldred and Golan clearly rule that. But the Fifth Amendment (the Taking Clause) states that the government must pay "fair value" to the orginal owner in any taking. There is a special court to handle disagreements about what fair value for any particular taking should be.

Is this a taking? If so, the public (either singularly or collectively) had the right to file for the lost value. This is separate from copyright length (albeit tied to changes thereto).

Your arguments seems to be that:
1. The public domain has no value, therefore seizing any part of it requires no compensation. However, it clearly has value to the parties being given it, which undercuts the position that there is no value to certain public domain items.
2. Barring that, nobody has any claim to it, therefore, there is nobody with standing to claim a loss. This is not true. Any person or group which uses public domain items as part of a for profit business loses value for those items (and may be forced to stop producing them) due to the reversion from public domain to rights holders. That can easily be shown to be a "taking" Hence, they would have standing. The question on whether publius has suffer a loss due to the loss of free access is a more open question. It cannot be ruled as impossible out of hand.

That footnote is important. The SOTUS could not rule on that issue, as it was not part of the litigation in question, but they themselves raised the issue. They would not do that without considering it worthy of note. It can only have effect on Congress if litigated to do so. And said litigation goes in favor of people whose previous access was taken.

There is no guarantees in litigation. But the point is not trivial. It's not a matter of whether I like the idea of copyright being re-established. The question is will I be recompensed for it? For I have lost something of value to me, which other people have used for profit. The law says I should be recompensed for the taking. Sorry if you don't like the chilling implications for copyright law expansions.

[Kali Yuga]

Originally Posted by Ralph Sir Edward

My point is not whether Congress has that right.

And yet you continue because...

Originally Posted by RSE

Your arguments seems to be that the public domain has no value, therefore seizing any part of it requires no compensation. However, it clearly has value to the parties being given it, which undercuts the position that there is no value to certain public domain items.

That is not in any way, shape or form my argument. I never said anything remotely along those lines. Nor did the SCOTUS.

What they said was that §514 or URAA did in fact properly handle any possible concerns based on the Takings Clause.

It's not that PD has no value. It's that PD is not a transfer of ownership, and further that there are no Constitutionally required protections on PD.

The petitioners did NOT make the argument that you're making. Their claim was that they had a "vested right," and that by reinstating copyright their First Amendment rights were harmed. If an objection based on the Takings Clause was a legitimate concern, there's no reason why the petitioners would not have included it.

Originally Posted by RSE

2. Barring that, nobody has any claim to it, therefore, there is nobody with standing to claim a loss. This is not true.

No, it's pretty much true.

The point of Section III B is that the "vested rights" claimed by the petitioners don't exist. Using public domain materials did not grant them any rights or protections at all.

If you actually read how §514 is set up, it doesn't indicate that the public at large ought to be or will be compensated. All it addresses are reliance parties and derivative works. They do not receive compensation; rather, reliance parties are given time to sell off their existing stock, and derivative works are required to pay a royalty to the original copyright holder.

If "public domain" meant "literal ownership by the public," then the government ought to levy a special tax on sales of public domain works, and redistribute those proceeds to the "public owners" of the works. That doesn't happen, precisely because public domain is not a transfer of ownership or rights. Public domain is the expiration of copyright protections, which results in a de facto eradication of any possible ownership.

As best I can tell, your argument has no legal basis, at least not in the US.