Supreme Court Says Congress May Re-Copyright Public Domain Works

[Kali Yuga]

Originally Posted by HarryT

Virtually nothing published after 1923 to be in the public domain, and nothing new to enter it until - is it 2047? - is just madness.

This is not correct.

Copyright expires on works every year. Check out publicdomainday.org for more info.

Obviously if CTEA had not extended copyright protection by another 20 years, many more copyrights would have expired this year, but material is entering PD all the time.

Edit: This includes much of the work and letters of James Joyce... http://latimesblogs.latimes.com/jack...in-mostly.html

[HarryT]

Originally Posted by Kali Yuga

Further, part of the idea is that these works should have been protected all along, and was not because the US was not upholding its obligations to Berne. It's not that the works were once protected, and new protection was imposed; it's more like the government recognizing it had a responsibility all along to offer copyright protection. I.e. the SCOTUS is saying that with URAA/CTEA, Congress restored the copyrights to the proper owners.

Yes, that's precisely that point that I was making, too.

[Greg Anos]

Originally Posted by HarryT

Oh well, that's not too bad - only another 7 years. But does anyone really think that there won't be another extension?



Isn't "equal treatment under the law" what this issue is all about? Equal treatment for foreign-published works?

How would you feel about corporate copyright lasting for the lifetime of the corporation, in parallel with the lifetime copyright enjoyed by individuals?

Only if corporation have to be disbanded and all their I.P becomes public domain after 115 years... Or any change of ownership, either through bankruptcy, takeover, or merger voids all I.P. rights, and they cannot be sold to another corporation.

Harry, these are temporary monopolies. It's bad policy to make them permanent. We busted up the biggest corporation in the world in 1912 (Standard Oil) because monopolies are bad, bad for everybody (even the monopolies themselves).

[Greg Anos]

Originally Posted by Kali Yuga

This is not correct.

Copyright expires on works every year. Check out publicdomainday.org for more info.

Obviously if CTEA had not extended copyright protection by another 20 years, many more copyrights would have expired this year, but material is entering PD all the time.

Edit: This includes much of the work and letters of James Joyce... http://latimesblogs.latimes.com/jack...in-mostly.html

Not in the US. There has only been one year (1922) that had gone into the public domain since 1978, with no more possible until 2019 at the earliest. Life + whatever is meaningless in the US, as everything is grandfathered from 1923, except for certain items that fell into the public domain due to non-renewal (before 1965).

[HarryT]

Originally Posted by Kali Yuga

This is not correct.

Copyright expires on works every year. Check out publicdomainday.org for more info.

Not in the US it doesn't, and that's what we're talking about here. To quote from the "Public Domain Day" site at Duke University:

What is entering the public domain in the United States? Nothing. Once again, we will have nothing to celebrate this January 1st. Not a single published work is entering the public domain this year. Or next year, or the year after that. In fact, in the United States, no publication will enter the public domain until 2019.

See:

http://www.law.duke.edu/cspd/publicdomainday

[Greg Anos]

Originally Posted by Kali Yuga

OK, again....

1) The Constitution says nothing about public domain, its structure or any limitations.
2) The ruling points out how Congress can restore copyrights on material that is in public domain. The limitation is that it can't result in perpetual copyrights.
3) Yet again, §514 of the URAA was designed to mitigate claims based on the Takings Clause. That was the point of the footnote you cited.
4) The Takings Clause was not discussed at all in Eldred and barely in Golan. Again, if your position was viewed as a likely option, at a minimum it's not a part of the petition or dissent in either of those cases.

By the way, you kind of have the Takings Clause a bit backward. The literal text says "nor shall private property be taken for public use, without just compensation." (emphasis added) This was only recently (and controversially) extended to include the seizure of private property for private use that allegedly serves a public good. I'm not aware of any indication that the government cannot "seize" a public resource and privatize it, at least not based on the Takings Clause. I mean, is the government supposed to compensate the government for selling a slice of land it owns?

(Note: this doesn't seem to be part of the reasoning in this ruling; again, the ruling just says "§514 is sufficient to satisfy concerns in the Takings Clause." I presume all parties roughly agree with the SCOTUS' evaluation.)

The Atlas Shrugged example does not apply, because it would involve removing Constitutionally protected ownership from the copyright holders (presumably Ayn Rand's estate). The lake seizure is also not applicable, because the state is acquiring property from an actual owner via eminent domain.

Congress is not seizing property that you own, precisely because no one owns it any more. The public doesn't receive royalty payments on PD works; the public can't assign the right to distribute a public domain work to a specific organization; the public can't block or grant the right to make a work derivative of a PD work. Neither the Constitution nor Copyright Law stipulate that a work in "public domain" has had its ownership transferred; all it says is that "after x years, copyright expires, and the copyright holder loses all the protections."

Further, part of the idea is that these works should have been protected all along, and was not because the US was not upholding its obligations to Berne. It's not that the works were once protected, and new protection was imposed; it's more like the government recognizing it had a responsibility all along to offer copyright protection. I.e. the SCOTUS is saying that with URAA/CTEA, Congress restored the copyrights to the proper owners.

Now, Congress could accept your argument, and rewrite copyright laws such that a work cannot be removed from the public domain once it's entered, or that when a work enters public domain, ownership is in fact transferred. But those kinds of decisions lie with Congress, because the Constitution makes no such provisions.

But it is seizing property... that's clear. Your argument is that it is unclaimed property, therefore no one has standing to claim damages. Yet they have lost access for free, which they already had. Is access a property? It's definable, it's measurable, but it is intangible. It also has value. It would be up to court to decide, not Congress.

Congress can pass any law it wants. It's doesn't mean that the SOTUS can't find it unconstitutional and therefore void, or that it is subject to other restrictions. (I'm speaking generically).

This issue has never been put before a court, so it hasn't been settled.

The real legal question is - does anybody have standing to claim damages. That's a win quick/lose quick issue. If they do - the rest will follow automatically. If they don't it ends quick. But there is no reason not to try.

As to why it hasn't been put before a court, that's easy. the Plaintiffs sought to block the reversion. This legal line would not block the reversion. It's only purpose woudl be to force Congress to factor in the public cost for copyright changes. As value is clearly being transferred, this is not unreasonable.

(Note, both in the Golan decision and the oral arguments for Ashcroft, this issue was hinted at by the members of SOTUS. I suspect it's not as dead-letter as you keep trying to force it into.)

As to you claim "§514 is sufficient to satisfy concerns in the Takings Clause." Here is what the ruling said (I just went over it and extract all Taking claim mentions.)

1. Concerns about §514’s compatibility with the Fifth Amendment’s Takings Clause led Congress to include additional protections for“reliance parties”—those who had, before the URAA’s enactment, used or acquired a foreign work then in the public domain. See §104A(h)(3)–(4).14 Reliance parties may continue to exploit a restored work until the owner of the restored copyright gives notice of intent to enforce—either by filing with the U. S. Copyright Office within two years of restoration, or by actually notifying the reliance party. §104A(c), (d)(2)(A)(i), and (B)(i). After that, reli*ance parties may continue to exploit existing copies for a grace period of one year. §104A(d)(2)(A)(ii), and (B)(ii).Finally, anyone who, before the URAA’s enactment, creat*ed a “derivative work” based on a restored work may indefinitely exploit the derivation upon payment to the copyright holder of “reasonable compensation,” to be set by a district judge if the parties cannot agree. §104A(d)(3).

2. (as quoted before) 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)."

Neither of those portions of the ruling states or implied The Court found those to be "sufficient to satisfy concerns in the Takings Clause", only that Congress meant them to satisfy concerns. There are no others. The Court has made no ruling on the matter, overt or implied.

[Kali Yuga]

h'm... It seems I stand corrected on US public domain.

Originally Posted by Ralph Sir Edward

But it is seizing property... that's clear. Your argument is that it is unclaimed property, therefore no one has standing to claim damages.

No, that's still not my argument.

I'm pointing out that the expiration of copyright is not the transfer of ownership. When copyright expires, all protection is terminated. The works whose copyrights have terminated are referred to collectively as "public domain."

It's not that the content is "unclaimed." It's that it is unclaimABLE by anyone.

There is no longer any ownership of Shakespeare's plays. You, as a member of the public -- of a totally different country than the original author -- did not receive a certificate of ownership of his works upon birth.

Nowhere in the US copyright laws does it say that when copyright expires on a work, ownership of 1/6,000,000,000 of the work is transferred to every man, woman and child currently in existence.

If the human population expands to 8 billion people, your share and access of PD works does not shrink from 1/6,000,000,000 to 1/8,000,000,000.

Public domain is the exact opposite of holding intellectual property rights over a work. And the reason why PD works is BECAUSE the rights expired, and are no longer applicable.

The public cannot decide what PD works can or cannot be published; the public does not receive royalties for PD works; the public cannot deny anyone the right to use a PD work for derivative purposes. You cannot sell or trade away your particular share of works in PD.

Again, in the words of the ruling:

Once the term of protection ends, the works do not revest in any rightholder. Instead, the works simply lapse into the public domain. 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.

The only clearer formulation I can come up with is:

No protection = no ownership = no control = no "seizure."

Originally Posted by RSE

Yet they have lost access for free, which they already had. Is access a property?

Nope.

Originally Posted by RSE

The real legal question is - does anybody have standing to claim damages.

Again, in this very ruling the SCOTUS said "no." That was the whole point behind the "vested rights" argument, which was specifically addressed and rejected in III B of the ruling.

Originally Posted by RSE

As to you claim "§514 is sufficient to satisfy concerns in the Takings Clause." Here is what the ruling said (I just went over it and extract all Taking claim mentions.... Neither of those portions of the ruling states or implied The Court found those to be "sufficient to satisfy concerns in the Takings Clause", only that Congress meant them to satisfy concerns. The COurt has made no ruling on the matter, overt or implied.

Yes, I read both of those sections. The first was a description of part of the URAA, the second was a footnote in the section that basically rejected the idea that any member of the public has a "vested right" to public domain.

The Takings Clause does not establish ownership or criteria of ownership. Further, no one brought a case saying they deserve compensation greater than what was outlined in §514. Nothing in the opinion criticized the way reliance parties or derivative works were handled, or suggested that it was insufficient compensation.

Seriously, just read the ruling. Copying and pasting paragraphs taken out of context is not helping your argument.

[Greg Anos]

Originally Posted by Kali Yuga

h'm... It seems I stand corrected on US public domain.



No, that's still not my argument.

I'm pointing out that the expiration of copyright is not the transfer of ownership. When copyright expires, all protection is terminated. The works whose copyrights have terminated are referred to collectively as "public domain."

It's not that the content is "unclaimed." It's that it is unclaimABLE by anyone.

There is no longer any ownership of Shakespeare's plays. You, as a member of the public -- of a totally different country than the original author -- did not receive a certificate of ownership of his works upon birth.

Nowhere in the US copyright laws does it say that when copyright expires on a work, ownership of 1/6,000,000,000 of the work is transferred to every man, woman and child currently in existence.

If the human population expands to 8 billion people, your share and access of PD works does not shrink from 1/6,000,000,000 to 1/8,000,000,000.

Public domain is the exact opposite of holding intellectual property rights over a work. And the reason why PD works is BECAUSE the rights expired, and are no longer applicable.

The public cannot decide what PD works can or cannot be published; the public does not receive royalties for PD works; the public cannot deny anyone the right to use a PD work for derivative purposes. You cannot sell or trade away your particular share of works in PD.

Again, in the words of the ruling:

Once the term of protection ends, the works do not revest in any rightholder. Instead, the works simply lapse into the public domain. 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.

Nope.



Again, in this very ruling the SCOTUS said "no." That was the whole point behind the "vested rights" argument, which was specifically addressed and rejected in III B of the ruling.



Yes, I read both of those sections. The first was a description of part of the URAA, the second was a footnote in the section that basically rejected the idea that any member of the public has a "vested right" to public domain.

The Takings Clause does not establish ownership or criteria of ownership. Further, no one brought a case saying they deserve compensation greater than what was outlined in §514. Nothing in the opinion criticized the way reliance parties or derivative works were handled, or suggested that it was insufficient compensation.

Seriously, just read the ruling. Copying and pasting paragraphs taken out of context is not helping your argument.

In order.

Originally Posted by Kali Yuga

The public cannot decide what PD works can or cannot be published; the public does not receive royalties for PD works; the public cannot deny anyone the right to use a PD work for derivative purposes. You cannot sell or trade away your particular share of works in PD.

However, I have the de facto right to make a copy, vend copies of it, make derivative works from it, perform it, among other possibilities, all for free. I lose those rights when it item is restored to Public Domain. Are those not real economic losses? Think of unclaimed land in the Western US in the past, or the "Commons" of New England. Those were cases of access without ownership. Same for Hiking trails in Hawaii.

Originally Posted by Kali Yuga

It's not that the content is "unclaimed." It's that it is unclaimABLE by anyone.

Not true! Congress has claimed it for the original holders.

Originally Posted by Kali Yuga

The only clearer formulation I can come up with is:

No protection = no ownership = no control = no "seizure."

Before - No protection = no ownership = no control = no "seizure."
After - Yes protection = yes ownership = yes control = ??yes?? "seizure."

If you check out the jusiprudence in the Western US, you will find that access is an actionable item. While that has nothing to do with copyright per se, it is in the juriprudence of "property" in a broad sense.

Originally Posted by Kali Yuga

The Takings Clause does not establish ownership or criteria of ownership. Further, no one brought a case saying they deserve compensation greater than what was outlined in §514. Nothing in the opinion criticized the way reliance parties or derivative works were handled, or suggested that it was insufficient compensation.

This ruling is only a few days old. No claim for taking could be made before a year, as had the case been decided the other way there would have been no ground for further ligitation, and as the expiration of one year hold harmless period does not start until then.

Whether or not this will be litigated, I don't know. I personally lack the means. Don't be suprised if it does, though, you opinions to the contrary. And don't be suprised if it ends up winning.

[Dulin's Books]

i think its more of a case of "finders keepers".

an item is left in the middle of a town square. you pick it up and say " ill share it with everyone" you begin letting one person after another hold it for awhile. then a police officer comes along and say "well, actually, it turns out that item belongs to this gent over here, give it back to him"

you feel a loss because you no longer have access to the item by you never had a legal right to keep it and pass it around in the first place. your claim to it doesnt supersede that of the owner.

[WT Sharpe]

Originally Posted by Kali Yuga

...It's based off of the copyright laws of the original nation, and is sometimes also subject to other agreements between individual nations.

E.g. Gone With the Wind is still under copyright in the US, but is in public domain in Australia, much to the irritation of the Mitchell estate.

Margaret Mitchell's been dead for 62, almost 63 years. It's ridiculous that Gone With the Wind should still be in copyright, but thanks to that blasted mouse it is. The war itself had only been over for 35 years when she was born, and she only lived 48 years.

[teh603]

Originally Posted by Dulin's Books

i think its more of a case of "finders keepers".

an item is left in the middle of a town square. you pick it up and say " ill share it with everyone" you begin letting one person after another hold it for awhile. then a police officer comes along and say "well, actually, it turns out that item belongs to this gent over here, give it back to him"

you feel a loss because you no longer have access to the item by you never had a legal right to keep it and pass it around in the first place. your claim to it doesnt supersede that of the owner.

Not really. Its more like someone parking a vintage car in front of your house for six months, and then the county (or whichever body does such things) going through the proceedings to have the car declared abandoned. So you decide to claim the car, go through all the necessary paperwork, restore and drive the car for a few years. Then suddenly you find that the car's original owner wants it back and has gone to the trouble of buying off enough legislators to rewrite the law to have all abandoned cars returned to the people who abandoned them, and doing away with the concept of an abandoned car altogether. So you're forced to give him back the car he abandoned in the first place, after you'd done everything you could to get a clear title to it.

[Kali Yuga]

Originally Posted by WT Sharpe

Margaret Mitchell's been dead for 62, almost 63 years. It's ridiculous that Gone With the Wind should still be in copyright, but thanks to that blasted mouse it is.

Disney didn't have all that much to do with it. After all, Europe went to Life + 70 several years before the US without Disney lobbying anyone. CTEA was also subjected to SCOTUS scrutiny, which did not find the extension to be unconstitutional.

Humanity has also survived just fine without free copies of Gone With the Wind, and copyright did not prevent such things as Carol Burnett parodying it.

I do agree that Life + 70 is a bit too long, but it's not that big a deal.

[Kali Yuga]

Originally Posted by teh603

Not really. Its more like someone parking a vintage car in front of your house for six months, and then the county (or whichever body does such things) going through the proceedings to have the car declared abandoned....

This is an incorrect explanation of this particular case.

The works in question are still in copyright in the foreign nations where they were first published. The US should have protected these works decades ago, but failed to do so because it was not upholding its obligations under the Berne agreement.

The works in question did not reach their expiration periods, nor was it negligence on the part of the copyright holders. It was the US government's actions that resulted in the works not being protected.

In addition, the URAA was written such that in order to restore the US copyright, the copyright holder is required to take action. Orphaned works don't wind up getting protection.

No one "fixed up" those works, they just accessed and/or distributed them for free.

[Giggleton]

Originally Posted by Kali Yuga

Humanity has also survived just fine without free copies of Gone With the Wind, and copyright did not prevent such things as Carol Burnett parodying it.

I do agree that Life + 70 is a bit too long, but it's not that big a deal.

Are we doing fine??

[Dulin's Books]

We're fine. We're all fine here now, thank you. How are you?