Supreme Court Says Congress May Re-Copyright Public Domain Works

[jimmy olsen]

Digusting!

http://www.wired.com/threatlevel/2012/01/scotus-re-copyright-decision/

Supreme Court Says Congress May Re-Copyright Public Domain Works

    By David Kravets
    January 18, 2012 |
    1:56 pm |
    Categories: intellectual property,

Congress may take books, musical compositions and other works out of the public domain, where they can be freely used and adapted, and grant them copyright status again, the Supreme Court ruled Wednesday.

In a 6-2 ruling, the court said that, just because material enters the public domain, it is not "territory that works may never exit." (.pdf)

The top court was ruling on a petition by a group of orchestra conductors, educators, performers, publishers and film archivists who urged the justices to reverse an appellate court that ruled against the group, which has relied on artistic works in the public domain for their livelihoods.

They claimed that re-copyrighting public works would breach the speech rights of those who are now using those works without needing a license. There are millions of decades-old works at issue. Some of the well-known ones include H.G. Wells' Things to Come; Fritz Lang's Metropolis and the musical compositions of Igor Fyodorovich Stravinsky.

The court, however, was sympathetic to the plaintiffs' argument. Writing for the majority, Justice Ruth Ginsburg said "some restriction on expression is the inherent and intended effect of every grant of copyright." But the top court, with Justice Elena Kagan recused, said Congress' move to re-copyright the works to comport with an international treaty was more important.

For a variety of reasons, the works at issue, which are foreign and produced decades ago, became part of the public domain in the United States but were still copyrighted overseas. In 1994, Congress adopted legislation to move the works back into copyright, so U.S. policy would comport with an international copyright treaty known as the Berne Convention.

In dissent, Justices Stephen Breyer and Samuel Alito said the legislation goes against the theory of copyright and "does not encourage anyone to produce a single new work." Copyright, they noted, was part of the Constitution to promote the arts and sciences.

The legislation, Breyer wrote, "bestows monetary rewards only on owners of old works in the American public domain. At the same time, the statute inhibits the dissemination of those works, foreign works published abroad after 1923, of which there are many millions, including films, works of art, innumerable photographs, and, of course, books — books that (in the absence of the statute) would assume their rightful places in computer-accessible databases, spreading knowledge throughout the world."

Anthony Falzone, executive director of the Fair Use Project at Stanford University and a plaintiff's lawyer in the case, called the decision "unfortunate" and said it "suggests Congress is not required to pay particularly close attention to the interests of the public when it passes copyright laws."

The majority, however, rebuffed charges that a decision in favor of Congress' move would amount to affording lawmakers the right to legislate perpetual copyright terms.

"In aligning the United States with other nations bound by the Berne Convention, and thereby according equitable treatment to once disfavored foreign authors, Congress can hardly be charged with a design to move stealthily toward a regime of perpetual copyrights," Ginsburg wrote.

It's not the first time the Supreme Court has approved the extension of copyrights. The last time was in 2002, when it upheld Congress' move to extend copyright from the life of an author plus 50 years after death to 70 years after death.

The lead plaintiff in the case, Lawrence Golan, told the high court that it will not longer be able to perform Prokofiev's Classical Symphony and Peter and the Wolf, or Shostakovich's Symphony 14, Cello Concerto because of licensing fees.

[Razgovory]

This does not help the efforts to combat piracy.

[Martinus]

Wow. Ever heard of lex retro non agit?

[grumbler]

Wow. Ever heard of lex retro non agit?

Now that Wikipedia is available again, you are back to playing lawyer, I see.

This is not at all a case of retroactive law.  It is the case of filling a loophole in the law, as required by treaty.  It may be a shitty treaty, but even non-lawyers like the two of us can grasp that that's a different issue.

[Martinus]

Well, this deprives the public of previously acquired rights (i.e. those of public domain). It's a special case of retroactive lawmaking.

[Faeelin]

Well, this deprives the public of previously acquired rights (i.e. those of public domain). It's a special case of retroactive lawmaking.

I don't understand what you mean by rights here. You don't have a constitutional right to noncopyrighted work. If it's taking something that was available to the general public by a change in law, how is this any different from decreasing, say, medicare benefits?

[Valmy]

I don't understand what you mean by rights here. You don't have a constitutional right to noncopyrighted work. If it's taking something that was available to the general public by a change in law, how is this any different from decreasing, say, medicare benefits?

This is like my nightmare: that, despite the Constitution explicitly saying otherwise, it continually gets claimed that unless the Constitution says I have a right I do not or I should not have it.  Anyway the point is obvious that I had the right to use a freely use something and then I did not.  So something that was considered a right by the public was taken away.  And unlike medicare benefits the government is not providing me with anything they are simply not going to prosecute me for something.  Does that mean everything I do that is not illegal is a graciously provided benefit?  Hurrah for my entitlement to not commit crimes.

But anyway the situation here is enforcing an international copywrite by treaty, and even though it sucks, this is probably necessary to protect our own abroad.

[Faeelin]

This is like my nightmare: that, despite the Constitution explicitly saying otherwise, it continually gets claimed that unless the Constitution says I have a right I do not or I should not have it.  Anyway the point is obvious that I had the right to use a freely use something and then I did not.  So something that was considered a right by the public was taken away.  And unlike medicare benefits the government is not providing me with anything they are simply not going to prosecute me for something.  Does that mean everything I do that is not illegal is a graciously provided benefit?  Hurrah for my entitlement to not commit crimes.

This is a bit different, no? Congress constitutionally has the power to manage copyright laws. Why can't it use that power to reauthorize copyright?

You might dislike the policy, but this seems constitutionally sound.

I admit it's hard to square this with the Constitution's language on a "limited time...."

[ulmont]

I don't understand what you mean by rights here. You don't have a constitutional right to noncopyrighted work.

Actually, I do.  I see 3 restrictions on the scope of copyright:

1) First Amendment freedoms of speech.  These are clearly reduced when a work is made unavailable.

2) The "limited times" phrase of the Copyright Clause.

3) The "to promote the progress of science and useful arts" phrase of the Copyright Clause.

Both the limited times and promotion of progress are significantly strained by taking works out of the public domain, which reduces freedom of speech, and so as a result I believe (obviously 6 members of the SCOTUS disagreed) that such retroactive protection is unconstitutional.

[grumbler]

Both the limited times and promotion of progress are significantly strained by taking works out of the public domain, which reduces freedom of speech, and so as a result I believe (obviously 6 members of the SCOTUS disagreed) that such retroactive protection is unconstitutional.

You make some good points, but the effect is spoiled by the claim that protection will be extended retroactively to these works; it is simply untrue.  Any uses of copyright materials under the old law will remain unpunished; the provisions of the extended copyrights are only in effect after the new law went into effect.

Retroactive laws are laws that extend current legal provisions and sanctions onto behavior undertaken before the law was passed. This law doesn't provide at all for punishment of actions that were legal at the time they were taken but are not legal now.  It thus is not retroactive.  I would note that British copyright law has already re-enabled copyright (in 1995) so this kind of thing is not unprecedented.

I share your belief that current US copyright laws are an unnecessary infringement on free speech in the US.  I think the original US copyright law (a term of 14 years, renewable once by the author if alive at the time of the renewal) hit the right balance.  Every change in term since has been a change for the worse.  I also think that original US standard should be the global standard.  Essentially infinite copyright does no one any real good.

[dps]

I don't understand what you mean by rights here. You don't have a constitutional right to noncopyrighted work.

Actually, I do.  I see 3 restrictions on the scope of copyright:

1) First Amendment freedoms of speech.  These are clearly reduced when a work is made unavailable.

2) The "limited times" phrase of the Copyright Clause.

3) The "to promote the progress of science and useful arts" phrase of the Copyright Clause.

Both the limited times and promotion of progress are significantly strained by taking works out of the public domain, which reduces freedom of speech, and so as a result I believe (obviously 6 members of the SCOTUS disagreed) that such retroactive protection is unconstitutional.

Copyright doesn't per se make a work unavailable.  I would have trouble thinking of a free speech issue that wouldn't be covered by fair use.

NOTE:  just to be clear,  I pretty much agree with what grumbler said about copyright law as far as policy is concerned, but as far as constitutional law is concerned, I think the Court got this one right.

[Valmy]

This is a bit different, no? Congress constitutionally has the power to manage copyright laws. Why can't it use that power to reauthorize copyright?

You might dislike the policy, but this seems constitutionally sound.

I admit it's hard to square this with the Constitution's language on a "limited time...."

Because the Constitution is not the final and eternal and universal statement on human rights.  Marty is a foreigner why would he be talking about Constitutional rights?  This is exactly why some of the founders were hesitant on creating a Bill of Rights is this attitude that if it is not in the Constitution no such right exists.  Our rights are supposed to come from nature remember?  I mean if we go by what our country is supposed to be about.

Anyway I said I think the court made the right choice here, it is about being consistent with our international obligations.

[ulmont]

You make some good points, but the effect is spoiled by the claim that protection will be extended retroactively to these works; it is simply untrue.  Any uses of copyright materials under the old law will remain unpunished; the provisions of the extended copyrights are only in effect after the new law went into effect.

Retroactive laws are laws that extend current legal provisions and sanctions onto behavior undertaken before the law was passed. This law doesn't provide at all for punishment of actions that were legal at the time they were taken but are not legal now.  It thus is not retroactive.  I would note that British copyright law has already re-enabled copyright (in 1995) so this kind of thing is not unprecedented.

Both opinions refer to this extension as retroactive, although I concede your distinction.

Anyway I said I think the court made the right choice here, it is about being consistent with our international obligations.

Being consistent with our international obligations means fuck-all if such obligations are inconsistent with the Constitution.

Copyright doesn't per se make a work unavailable.  I would have trouble thinking of a free speech issue that wouldn't be covered by fair use.

Interestingly, the Supreme Court's majority opinion gave another free speech issue not covered by fair use (the idea / expression dichotomy), although I think they still miss the mark.

Copyright inherently restricts my right to speak, and does so based explicitly on the content of my words.  Accordingly, copyright protections should receive the strictest scrutiny pursuant to the First Amendment.

EDIT: probably don't need 3 separate posts here.

[Neil]

Essentially infinite copyright does no one any real good.

Walt Disney Co?

[dps]

Anyway I said I think the court made the right choice here, it is about being consistent with our international obligations.

Being consistent with our international obligations means fuck-all if such obligations are inconsistent with the Constitution.

I agree, but since I don't buy Valmy's contention that copyright limits 1st Amendment rights, I don't see any constitutional problems with the ruling.