Why The Golan Case Matters: Pulling Works From The Public Domain Is A Massive Tax On Culture

from the a-big-problem dept

Tue, Jun 7th 2011 1:03am — Mike Masnick

We've been covering the "Golan" case through the courts for quite some time now. This is an important case concerning the contours of copyright law and the locking up of the public domain. If you don't recall, the case involved whether or not it violates the Constitution to pull content out of the public domain. Certain foreign works that were in the public domain were put back under copyright due to a trade agreement the US signed a while back. Many who relied on those public domain works were left out in the cold. A district court agreed that this appeared to violate the First Amendment. However, the appeals court went the other way, with some troubling arguments about how it was okay to pull works out of the public domain, effectively because US copyright holders insisted that without this, foreign countries would "retaliate" against them, and thus it was okay for Congress to make this call. The Supreme Court has now agreed to hear the case.

The case is important for many different reasons, including helping to establish just what the "traditional contours" of copyright law are -- which is of key importance, because the Supreme Court has declared that copyright can't be expanded past the traditional contours without leading to greater Constitutional scrutiny. However, one thing we've noticed, is that copyright maximalists in our audience have brushed aside the Golan case as a minor concern because it impacted just a few works (foreign works) that most people probably didn't care about anyway.

Thankfully, there's an excellent piece at The Chronicle of Higher Education that both tells the story of Professor Lawrence Golan himself, and why this case matters, noting how the locking up of these works has serious impact on musicians around the country, effectively cutting off important pieces of culture from their repertoire:

That may sound abstract, but the impact on Mr. Golan was direct. When a work is in the public domain�that Puccini opera, say�an orchestra can buy the sheet music. Symphonies typically cost about $150. And the orchestra can keep those pages forever, preserving the instructions that librarians laboriously pencil into scores. But works under copyright are typically available only for rent. And the cost is significantly higher: about $600 for one performance. With the flip of a switch, the new law restored copyright to thousands of pieces.

For big-city orchestras like the New York Philharmonic, that change is like a "mosquito bite," Mr. Golan says. But Mr. Golan's university ensemble gets only about $4,000 to rent and buy music each year. That means it can perform some copyrighted works but must rely on the public domain for about 80 percent of its repertoire. And $4,000 is relatively generous. Other colleges might have only $500 to spend on music. When the Conductors Guild surveyed its 1,600 members, 70 percent of respondents said they were now priced out of performing pieces previously in the public domain.

Teaching suffers, too. Every year, for example, University of Denver students compete for the honor of playing a concerto, a piece in which the orchestra accompanies a solo instrument. But when a pianist wanted to audition with a piano concerto by Prokofiev, a Russian composer who died in 1953, Mr. Golan was forced to tell her no.

"It's one that any aspiring pianist needs to learn, and to have the experience of actually playing it with orchestra is phenomenal," Mr. Golan says. But "we just didn't have the money in the orchestra budget to pay the rental price."

It's great to see this case getting more (and more thorough) attention. Hopefully, the Supreme Court recognizes the significance of the case.

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Filed Under: copyright, culture, first amendment, golan, public domain

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Yogi, 7 Jun 2011 @ 1:34am

Yes but
If Mr. Golan really wants to
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The eejit (profile), 7 Jun 2011 @ 2:17am

Re: Yes but
The thing is, he's a professor. T%hat means that, unless he has absolute security in his job (which isn't always likely,) he cannot afford to risk doing what would be simplest for both his students AND his department.

And yet certain epople only see "That sky is FALLING! AND IT'S NEON YELLOW! AAAAAAAAaaaaaaaaaaAAAAAAAAAAaaaaaaAAAAAAAAAaaaaaaa!" This case is far more important than even SCOTUS may realise - this is the quintessential battle between education and rights. And this will have far-reaching consequences. And I fear that SCOTUS will punt it.
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FuzzyDuck, 7 Jun 2011 @ 3:05am

Privatizing public land
Extending copyrights is like giving public land to private corporations in exchange for nothing. There would be a public outcry if public land were given away like that for free...
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The eejit (profile), 7 Jun 2011 @ 3:46am

Re: Privatizing public land
And this is where the bizarre dichotomy between copyright and real property comes into play.
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Anonymous Coward, 7 Jun 2011 @ 4:19am

Re: Re: Yes but
The story is amusing, but it is also a bit of a red herring.

The number of works lost in the process is not signficant compared to the overall body of works that are in the public domain and completely usable as always. It appears that we are talking about a collection of 20th century works from Russia. While the story linked refers to it as "vast", the number of works involved might be in the hundreds. In terms of the overall pool of public domain works, it's a very small number.

Further, the professor isn't left without options. He isn't in a position where his orchestra will be shut down because they have no music to play. There is no chilling effect on school orchestra play, their voices (or instruments) are not silenced. Yes, there is a small number of works that are no longer available to them, but they certainly can continue to play music. The appeals court got it right when they tossed the first amendment arguments out as sort of meaningless.

Further, there is no diminishing of education, as the professor can still teach about those works, that time period, etc, but cannot use the works without paying for the sheet music nor perform it in public without the appropriate fee.

It is akin to a city creating a carpool or bus only lane from an existing road. The average solo motorist might find themselves with less road to drive on legally, but their rights to operate a motor vehicle are not diminished. They just have a little less road to work with in one area.

I should also say that the linked story seems incredibly biased, and seems to lack specific information. Refering to the number of works as "vast", but not giving an idea how many works are in play isn't very useful. A much more useful link would be a more recent judgement:

http://scholar.google.ca/scholar_case?case=1636353906906143958&hl=en&as_sdt=2& amp;as_vis=1&oi=scholarr

It does a much better job of explaining the situation, and gives some great insight into why the court didn't feel that there was any real first amendment issue. The result is quite simple:

"We conclude that because Section 514 advances a substantial government interest, and it does not burden substantially more speech than necessary to advance that interest, it is consistent with the First Amendment. Accordingly, the district court erred in ruling that Section 514 violates plaintiffs' freedom of expression."
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Anonymous Coward, 7 Jun 2011 @ 4:54am

For Limited Times
If some work has a copyright on it which is longer than someone can reasonably expect to live, then as far as that someone is concerned, the copyright is not limited. If more than 50% of the population is going to die before the work comes out of copyright, then the majority of the population is effectively being subjected to an unlimited copyright term. The constitutional "for limited Times" is relative to the normal human lifetime. The bible says we get "three score years and ten" -- 70 years. Limited time should be something short compared to that, say 20%.

We should go back to the original, just and reasonable copyright term of 14 years. If some artist cannot convert their original artistic work into money, given a 14-year head start over everybody else, too bad. There are way too many rent-seekers and lawyers involved in copyright, as it is now.
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Anonymous Coward, 7 Jun 2011 @ 5:14am

The U.S. government is an embarrassment to its citizens. I many ways, the U.S. government is far more plutocratic than so many other nations.

The U.S. government abridges us of so many of our rights through the creation of many many government imposed monopolies and these government imposed monopolies are responsible for so many lost jobs (or for the replacement of so many higher paying jobs with much lower paying jobs that require the poor to work much harder to serve the rich) and for so much income inequality and middle class taxation yet, in the name of free market capitalism, the U.S. government provides us with absolutely nothing in return. While Canada does abridge its citizens of so many rights, at least Canada provides its citizens with universal health care in return (not that I agree with the government providing its citizens with such). From what I understand and have heard from U.S. visitors, in so many other countries (even Arab countries) seeing homeless people walking the streets is very uncommon (or it doesn't happen). One of the first things that strikes U.S. visitors from other countries is the number of homeless people we have. While other governments abridge citizens of their rights, they at least provide for those citizens with something. Heck, even communist countries provide for their citizens. The U.S. government abridges us of so many rights through government imposed monopolies yet it provides us for absolutely nothing in return. Heck, we provide for other countries with more through foreign aid (though these provisions are often politically driven and end up going to the leaders and upper class of those countries) than we do for many of our own citizens. This country is plutocratic to its core. Our government takes so much from its citizens in the form of tax dollars, it takes so many of our rights, all in ways designed to create income inequality and plutocracy, yet it provides us with absolutely nothing.
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Anonymous Coward, 7 Jun 2011 @ 5:21am

Re: Re: Re: Yes but
The only substantial government interest was the cash payout from music industry reps to the government officials that helped create the trade agreement that forced these works out of the public domain.
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Anonymous Coward, 7 Jun 2011 @ 5:22am

Re:
(well, I take that back. The government does provide us with education in many ways through financial aid programs, and I think that's a good thing. Though that's often designed to get people better prepared to work for large corporations, so part of that is driven to promote large corporate profits, but there is nothing inherently wrong with that in and of itself).
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Chuck Norris' Enemy (deceased) (profile), 7 Jun 2011 @ 5:30am

Re: Re: Re: Yes but
it's a very small number

Does that even matter? Logic check: We should shoot all Native Americans because it will only effect a small number of people. Idiot!
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Chuck Norris' Enemy (deceased) (profile), 7 Jun 2011 @ 5:37am

Re: Re: Re: Yes but
It is akin to a city creating a carpool or bus only lane from an existing road. The average solo motorist might find themselves with less road to drive on legally, but their rights to operate a motor vehicle are not diminished. They just have a little less road to work with in one area.

Of course, in this analogy, there is some some supposed public benefit. What public benefit is there to removing a work out of the cheaper, free-er public domain? Now we have to pay four times the cost because the government granted a monopoly to a small number of people (I guess that shouldn't matter: see other comment) who didn't create a damn thing.
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hegemon13, 7 Jun 2011 @ 6:01am

Re: Re:
No, the government gives us patriotic brainwashing in the guise of education. There's a reason that all the best schools, at any level of education, are private.
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Anonymous Coward, 7 Jun 2011 @ 6:28am

Re: Re: Re: Yes but
I have a serious question that has nothing to do with trolling you. What happens when copyright is extended to forever -1 day? That has been pushed in the past. What happens the government re-claims all works ever written to be covered by copyright and held by a handful of people? Where will the rest of us be left?
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Anonymous Coward, 7 Jun 2011 @ 6:58am

Re: Re: Re: Yes but
Ah, I see. The first amendment just doesn't apply if it's only silencing "some" speech. Good to know.
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Josh Taylor, 7 Jun 2011 @ 7:01am

All they're going to do after doing away with public domain is to criminalize creativity in favor to protect current copyrighted works.

Next thing after they done away with Public Domain is to abolish Creative Commons and maybe even enforce DRM thought police chips into your and your child's little brain in case you or your child tries to do something creative.
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Jason, 7 Jun 2011 @ 7:25am

Re: Re: Re: Yes but
Yes, but the absurd premise of congruency on which the court relied for this conclusion is completely void.

"Thus, the benefit that the government sought to provide to American authors is congruent with the burden that Section 514 imposes on reliance parties. The burdens on speech are therefore directly focused to the harms that the government sought to alleviate. 'This is the essence of narrow tailoring.'"

Essentially, the argument is that because we gained an equal benefit in suppressing free speech elsewhere, it's perfectly okay to suppress it here in the same way.

Also, it was absurdly wrong for Plaintiff to concede content neutrality. On the surface 514 may seem content neutral, however the speech of an entire generation is affected and as such the collective force of the cultural and political swing of the period is suppressed. It is not "an incidental effect on some speakers or messages but not others," but a global impact upon all speech. It is of no less impact than would be an ink tax on written works of the same period.
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Anonymous Coward, 7 Jun 2011 @ 7:29am

Re: Re: Re:
Unfortunately, there is some truth to that (and not just for the U.S. government, though the U.S. and the U.K. are often behind many of these brainwashing ^H^H^H^H^H^H^H^H^H^H^H^H educational campaigns).
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Anonymous Coward, 7 Jun 2011 @ 7:31am

In terms of the overall pool of public domain works, it's a very small number.

Yesterday, taking a very small number of early sound recordings out of state copyright and moving them under federal copyright was a unconscionable violation of the takings clause of the 5th Amendment that would cause irreparable harm to the rights-holders who largely aren't doing anything with them anyway.

Today, taking a very small number of early foreign works out of the public domain and placing them back under copyright is no big deal (even though the public *is* using those works) because it's only a small number of works.

If nothing else, I have to give you credit for maintaining consistency with the "copyright good; public domain evil" mantra.
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CommonSense (profile), 7 Jun 2011 @ 7:46am

Re: Re: Re: Yes but
First they came to take a 'very small portion' of '20th century works from Russia,' and I didn't speak up because I didn't care about those works.
Then they came for the Jews, and I didn't speak up because I wasn't a Jew.....

maybe it doesn't look like a big deal today, but if the public gives up an inch, the greedy assholes will take a mile. Simply ask the Native Americans...
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Anonymous Coward, 7 Jun 2011 @ 7:48am

Re: Re: Re: Re: Yes but
I think that saying the "speech of an entire generation is affected" is a broad overstatement in this case. What we are looking at is a very small subset group of works from Russia, not an entire generation of music.

Further, and just as important, this content is not shut off or blocked, it is only part of the copyright process which includes licensing and such.

There is always a balance between free speech (as an absolute) and the government interest being served. A few works slide back under copyright to keep the US in line with international treaties, and in return, other governments are willing in the future to sign treaties with the US knowing they will be supported in good faith. That is only an example situation.

To suggest that a whole generation suffers some great harm as a result of this particular situation is a gross overstatement. My personal life (and likely yours) isn't changed one iota.
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Nathan F (profile), 7 Jun 2011 @ 8:23am

Re: Re: Re: Re: Re: Yes but
"To suggest that a whole generation suffers some great harm as a result of this particular situation is a gross overstatement. My personal life (and likely yours) isn't changed one iota"

And so you say nothing. And then one day, they come for you.. and there is no one left to say anything.
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Nathan F (profile), 7 Jun 2011 @ 8:26am

Re: Re: Re: Re: Re: Re: Yes but
And I see Commonsense beat me to the saying.. ah well, that will teach me to read the next comment down before I say something.
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theskyrider, 7 Jun 2011 @ 8:26am

No more public domain.
With the rulings that the USSC has been making this year, I wouldn't be surprised if they just 'legislated from the bench' and just wrote the public domain out of existence.

Remember that when you go to re-elect Obama for president. He's the one that put one of those Yahoos on the bench and may even get his second wish.
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The eejit (profile), 7 Jun 2011 @ 8:27am

Re: Re: Re: Yes but
From your link:

"The late plaintiff Kapp created a derivative work�a sound recording based on several compositions by Dmitri Shostakovich. Section 514 of the URAA provided copyright protection to these foreign works, removing them from the public domain in the United States. As a result, plaintiffs are either prevented from using these works or are required to pay licensing fees to the copyright holders�fees that are often cost-prohibitive for plaintiffs."

From Section II, emphasis mine.

So, who are these miythical rightholders that the orchestras must pay in order to license the sheets and stay within the law?

"Yes, there is a small number of works that are no longer available to them, but they certainly can continue to play music. The appeals court got it right when they tossed the first amendment arguments out as sort of meaningless."

From your post, emphasis mine. Did youi actually bother to read the quoted section in the blog post?

"But when a pianist wanted to audition with a piano concerto by Prokofiev, a Russian composer who died in 1953, Mr. Golan was forced to tell her no."

This is how it has a chilling effect on musical education - by effectively prohibiting people who like the music, and want to use it as part of a qualification from doing so. So I'd argue that there is a First Amendment application here; it may be less than implied in the blog post, but it's still there.
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The eejit (profile), 7 Jun 2011 @ 8:28am

Re: Re: Re: Yes but
AS an aside, thank you for at least citing evidience to back up your claims.
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Anonymous Coward, 7 Jun 2011 @ 8:40am

Re: Re: Re: Re: Re: Re: Yes but
They come for me what, exactly? They aren't jackbooted thugs taking people off to concentration camps for chrissakes.

Melodramatic much?
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tetron (profile), 7 Jun 2011 @ 8:40am

Re: For Limited Times
Exactly! "Limited" has to mean something, but now seems to be based on the lifespan of corporations, not people. As it stands now, when someone the same age as you creates something under copyright, not only will it never become public domain in your lifetime, it probably won't enter the public domain for most of your children's lifetime either. That's really mind-boggling, when you think about it. At the current rate that copyright is being extended, it's more likely works will go into the public domain due to the American government collapsing or be overthrown than due to the expiration built into the law. This is an absurd situation.
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tetron (profile), 7 Jun 2011 @ 8:43am

Eldred v. Ashcroft
Can anyone comment how does this compare to Eldred v. Ashcroft, which also dealt with this issue of moving works in the public domain back under copyright?
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Jason, 7 Jun 2011 @ 9:03am

Re: Re: Re: Re: Re: Yes but
"But when a pianist wanted to audition with a piano concerto by Prokofiev, a Russian composer who died in 1953, Mr. Golan was forced to tell her no."

That! That affects me. Fsck off.
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Anonymous Coward, 7 Jun 2011 @ 9:41am

Re: Re: Re: Re: Re: Re: Yes but
Why would she not be allowed to make a private audition with whatever music she chooses? Perhaps it was more of a public performance? Perhaps My Golan's lawyers misunderstand the difference?
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CommonSense (profile), 7 Jun 2011 @ 9:43am

Re: Re: Re: Re: Re: Re: Re: Yes but
That's kind of the point. It seems a bit over the top, until all of a sudden, it isn't. When it isn't, that's when it's too late to do anything about it. It has to be stopped now, because once you're on a slippery slope, it's easy to keep slipping down, and very difficult to climb back up.

Are you just willfully ignorant??
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Anonymous Coward, 7 Jun 2011 @ 9:55am

"Why would she not be allowed to make a private audition with whatever music she chooses?"

Because the sheet music itself now costs a lot more thanks to the new copyright on the work. That's why.
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Anonymous Coward, 7 Jun 2011 @ 9:57am

Re: Re: Re: Re: Re: Re: Re: Yes but
Perhaps culture is best served by living artists and fewer lawyers?
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Rikuo (profile), 7 Jun 2011 @ 11:24am

Re: Re: Re: Yes but
"not signficant...20th century works from Russia" So because they're Russian, it doesn't matter if they're no longer public domain?

"There is no chilling effect on school orchestra play, their voices (or instruments) are not silenced." Yes there is a chilling effect. A music teacher could in all probability have looked at these pieces of music, planned a lesson plan and then, to his shock, discovered that the government put them back under copyright.

"Further, there is no diminishing of education, as the professor can still teach about those works, that time period," So let me get this straight. A music professor can teach ABOUT a piece of music, but isn't allowed actually play it? What's next? English literature students coming in to class one day and realising that they have to pay extra for Ernest Hemingway or Silvia Plath?
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PRMan, 7 Jun 2011 @ 11:50am

Ex Post Facto?
What happened to Ex Post Facto laws? The idea is that once something is a certain way and people build businesses around it, it's disruptive to change the rules on everyone.

Taking things back from the Public Domain should not be possible (nor extending the time limits, but that's another story).
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HothMonster, 7 Jun 2011 @ 12:41pm

Re: Re: Re: Re: Re: Re: Re: Yes but
They were probably auditioning with the piece they planned to play in the actual concerto. Since they were auditioning for the right to a single performance as opposed to a seat I would imagine he wanted to hear the song they planned to play in the performance. Seeing as how the lead in a concerto is a big deal she probably had been practicing and perfecting this song for quite some time. But oh well now someone owns that music and demands money
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Chuck Norris' Enemy (deceased) (profile), 7 Jun 2011 @ 1:08pm

Re: Re: Re: Re: Re: Re: Re: Yes but
No, they are not sending the jackbooted thugs.?.
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Anonymous Coward, 7 Jun 2011 @ 1:17pm

Re: Re: Re: Yes but
The number of works lost in the process is not signficant compared to the overall body of works that are in the public domain and completely usable as always.

So, you're saying that because the amount being stolen* is comparatively small, nobody should bother getting worked up about it?

So, you wouldn't mind if you got mugged - after all, the amount of cash you carry with you is only a fractional percentage of what you make in a year, so there's no harm done, right?

*yes, stolen - it's being taken from people without their consent - they no longer have the ability to use it.
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Mike Masnick (profile), 7 Jun 2011 @ 1:51pm

Re: Eldred v. Ashcroft
Can anyone comment how does this compare to Eldred v. Ashcroft, which also dealt with this issue of moving works in the public domain back under copyright?

Same folks are involved with Eldred, Kahle and Golan cases. Each has subtle distinctions, though they're all related. The Eldred case was about copyright term extension, and while that failed, it did establish the standard that you can raise a First Amendment issue in a copyright law change *if* the traditional contours of copyright law has changed. The Kahle case used that to test the legality of the switch from opt-in copyright to automatic copyright in the 1976 Copyright Act. Tragically, the court falsely thought this was the same argument raised in Eldred. It was not.

The Golan case tests a different change in copyright law, that which put public domain works back under copyright due to a treaty. And the district court ruled that this did change the contours of copyright law, and thus was a First Amendment issue. The appeals court disagreed.

If the Supreme Court does recognize this as a change, it could create further opportunities to challenge some questionable changes in copyright law.
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btr1701 (profile), 7 Jun 2011 @ 5:53pm

Re: Re: Re: Yes but
> While the story linked refers to it as "vast", the number of works
> involved might be in the hundreds.

I don't care if it's only one work. It's bullshit.

Big Copy has already succeeded in extending copyright to just about everything under the sun and lengthening the copyright term to such an extent that most of us will never ever see anything else enter the public domain in our lifetimes.

To start taking stuff that's already in the public domain and locking that down, too, is frankly immoral. Justifying it with quibbles about the nuances of the word 'vast' is just silly.
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Anonymous Coward, 7 Jun 2011 @ 9:13pm

Re: Re: Re: Re: Re: Yes but
"What we are looking at is a very small subset group of works from Russia, not an entire generation of music. "

Reading comprehension fail. Even if your assertion that what we are "looking at is a very small subset group of works from Russia" that doesn't mean that the speech of an entire generation is not affected.

You are confusing "the speech of an entire generation" with "an entire generation of music."

It's not a broad overstatement, the speech of an entire generation (and following generations) is affected.
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Anonymous Coward, 7 Jun 2011 @ 9:22pm

Re: Re: For Limited Times
"Limited" has to mean something, but now seems to be based on the lifespan of corporations, not people.

Not even. If a corporation liquidates, it can sell its IP to other corporations or entities.

I think this is something that should be disallowed. It in no way promotes the progress. Corporations do not invest in art and music and technological advancements for the sake of being able to pay back 6% of their debt in opposed to paying 5% of their depth in the event that they should liquidate sometime in the future. The corporation is going out of business regardless, it doesn't care whether it pays back 5 or 6 percent of its debt thanks to its ability to sell its IP. So its ability to sell its IP after going out of business gives it absolutely zero incentive to invest in the sciences and the arts. The ability to sell their IP upon going out of business should be abolished.
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Anonymous Coward, 7 Jun 2011 @ 9:24pm

Re: Re: Re: For Limited Times
(and the IP should automatically go into the public domain when the corporation goes out of business, of course. Both patents and copy protections).
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Robert, 21 Jun 2011 @ 2:06pm

Re: Re: Re: Re: Yes but
Infinity-1 = infinity. We are already well beyond any reasonable definition of "limited times". There are those who advocate to have the copyright period be Infinity-1, and claim that this meets the definition of limited, but that is absurd. But putting aside infinity-1, limited does not equal finite. We would say that the copyright period should be 1,000,000 years, that would be finite, but would not qualify as limited by any rational measure.

If you want to know what happens if copyright is extended to the point where it is for all practical purposes eternal, look at how dependent culture has been on the public domain. Disney has relied heavily on public domain works: many of their movies were based on works that would have been under copyright if today's copyright terms were in effect at the time. Shakespeare relied on the public domain, he wasn't pulling these plays out of the ether. He couldn't have written Romeo and Juliet without the public domain. If copyright goes on forever, culture comes to a stop. Isaac Newton famously said that he "stood on the shoulders of giants". Eternal copyright forbids people from standing on the shoulders of giants to build on what has gone before. There is very little out there that is entirely original.
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