Lawrence Golan Speaks About Golan V. Holder And His Fight To Protect The Public Domain
from the protecting-the-public-domain dept
Crossposted from questioncopyright.org
The U.S. Supreme Court began hearing arguments Wednesday in Golan v. Holder, which argues against action taken by Congress to move thousands of works from the public domain back under copyright restrictions. It's not small beer in the copyright world. Google supports the challenge. The New York Times, Washington Post and others ran stories recently.
In the New York Times piece, "Will Copyright Stifle Hollywood?" Peter Decherney, an associate professor of film studies at the University of Pennsylvania, makes arguments about film that are similar to what conductor Lawrence Golan, the lead plaintiff in Golan v. Holder, made about classical music when Rich Bailey interviewed him for Question Copyright, and agreed to crosspost it here on Techdirt.
Here is a lightly edited transcript of Lawrence Golan's comments. More to come as the case progresses.
Rich Bailey: Can you explain what's involved in this case?
Lawrence Golan: Back in ’94 the GATT treaty was passed, also known as the Uruguay Roundtable Agreement. And essentially what it did was it took out of the public domain thousands and thousands if not millions of pieces of music that were in the public domain. To give you some examples of things that you would know: music by Shostakovich and Prokofiev and Stravinsky and some specific examples like Peter and the Wolf. That’s probably the most recognized piece that was taken out of public domain, although there were hundreds of thousands if not millions of others.
And how that affects people in this country is as follows.
First of all let me tell you how it works in general with procuring music for performance. Any symphony orchestra that wants to play a piece of music has to obtain the sheet music, the actual physical pieces of paper to be placed on the music stands for all the members of the orchestra so that they can play the music, and of course there’s a score for the conductor who has all the parts. And for any given piece of music, there are essentially two possibilities. Either the piece is available for purchase or it’s not available for purchase and only available as a rental.
Now the difference between the two is like this. If something’s available for purchase, an orchestra can buy the music. They buy all the parts, the score and the price varies but for a 10 to 15 minute piece the price might be $150 let’s say. And for a longer more substantial piece, an hour-long symphony maybe, the price would be up to $300 or so. And then the orchestra purchases the music, and it owns the music and can keep it in its library and perform it as frequently as it would like to without having to re-buy the music every time. It keeps the music and stores it in its library.
In addition to not having to buy it each time, there’s also a question of all the performance markings that go into playing any piece of music. Even before the orchestra musicians get the parts, the conductor and the librarian and the principle players have worked to create a series of markings that the librarian then transfers into all the parts. For example strings bowings. And this is like hours and hours and hours of preparation even before the musicians get the parts. Then once they get them, during the rehearsal process more markings are put in. The conductor might say play that softer, play that louder or whatever the case may be, and all those markings go into the part. And again, with a piece that the orchestra was able to purchase, those markings stay in the parts and then the next time they do the piece two years later, four years later, whatever it is, all those markings are there. And it’s infinitely easier and less time consuming to do it the second, third and fourth times once those markings are there.
Now the other side of the equation is when a piece is not available for purchase and it’s only rented by the publisher. Now in cases like that, again the price varies but in average pricing it could definitely be way more and it sometimes could be a little less but average prices to rent a symphony is around $600-700 to rent it to perform the piece one time. And in fact even if you perform it in three concerts on the same weekend, they charge you for each concert, although usually the second and third performances are at a reduced rate. So let’s say you have three concerts in one weekend: $600 for the first performance, maybe $500 for the second and $300 for the third. It could be $1,500 to play the piece on one weekend. And then you go through that same process of all the markings that I talked about, and then you have to erase the markings and return them mark-clean to the publisher.
And so if you wanted to play the piece again in two years or four years or whenever, the orchestra has to again pay $500, $600, $1,500, whatever it is depending on the piece or depending on the number of performances to rent the same piece again that they just played two years ago, go through all the bowing and marking process and everything. And so as you can see it’s just so incredibly more advantageous to be able to purchase music and keep it in the library and just reuse it at will. That’s the general procedure.
Now specifically in regard to this law, there were hundreds of thousands of pieces of music that were in the public domain. Orchestras were able to purchase the music for a reasonable price and then just kept it in their library and had the markings in it and so on. Those pieces got taken out of the public domain, which means that since 1996 when the law went into affect, orchestras can no longer buy those pieces that they used to be able to buy. Instead they have to rent it.
There was one other thing I forgot to mention, which is a licensing fee. When something’s in the public domain, not only can you buy the music but you don’t have to pay anyone a licensing fee each time you play it. But when something is rental only and under copyright, not only do you have to rent the music. On top of that, you have to pay a licensing fee to the publisher every time you want to play the piece. And that even goes for pieces that you purchased before that law came out. You actually have to pay a licensing fee on something you already own every time you want to play it.
Now here’s where the size of the organization comes into play. The larger organizations -- just a couple examples would be the New York Philharmonic, the Boston Symphony, Chicago Symphony -- those orchestras first of all have very large budgets and although they’re not happy about it, they can afford to rent whatever pieces they need to rent. And in terms of the licensing fee, those larger organizations pay a blanket licensing fee every year that covers all their copyrighted music.
So it doesn’t really affect the big, larger organizations that much. They have to pay more for rentals than they used to, but it’s not debilitating. On the other hand, here’s how it works with smaller orchestras whether they be professional orchestras in smaller towns or university orchestras or high school orchestras or youth orchestras. They too have a budget, like the larger orchestras for renting and/or purchasing music but it’s obviously much, much smaller.
Depending on the orchestra, their annual budget for all music procurement could be $300, $500, maybe $1,000, maybe $2,000. It all depends on the organization and what kind of money they have. But for an organization whose annual budget for music procurement is $300, then by definition to rent a piece that costs $500 for one performance literally is impossible. That’s more than they have for the entire year. On the other hand let’s say an orchestra that has a budget of $1,000 for the year for music, a rental piece of $500 for one piece would take up half their annual budget. You know maybe they have to rent and perform 20 or 30 pieces in a year. That one piece is going to take up half their budget.
So as you can see, it makes it cost prohibitive for those orchestras to play the music. And on top of that, by the way, they also have to pay those licensing fees, which they didn’t have to pay before. So in effect what the law did was this: because of the costs involved, it currently prevents many, many smaller orchestras and educational institutions from physically performing these pieces. It’s not a question of well, they just have to pay more. If they don’t have more they can’t play the piece. So they’re simply not playing those pieces.
That affects other people in the community, too, anybody else who would go to concerts, for example, Peter and the Wolf. In the old days before 1994, almost every orchestra in the country, when they played a youth concert for children, they would play Peter and the Wolf because it’s one of the greatest pieces of all time specifically designed and written for teaching children about the instruments in the orchestra. So we all as kids undoubtedly had heard and/or played live performances of Peter and the Wolf. Well that doesn’t happen anymore in smaller communities. Many smaller communities where they would love to play Peter and the Wolf for their children’s concert can’t because they are not allowed to purchase the music and to rent it is more than they have in their budget. So all the children in these smaller communities are being deprived of an opportunity to hear a live performance of Peter and the Wolf.
Again that’s just one example. It’s literally hundreds of thousands of pieces that are not getting played in many, many smaller communities and at schools, educational institutions.
And who is this bill supposedly protecting? I made it pretty clear who it’s affecting negatively. Well who is it affecting positively? Well in theory it’s supposed to protect the heirs, the great grandchildren or the great, great grandchildren of many of these composers who have been dead for decades because they would now get all these royalties that they didn’t used to get. And again with the large orchestras, the New York Philharmonic, sure, the heirs of these composers are getting a very small royalty check from the couple of orchestras that play these pieces. But by and large, the pieces are simply not being played.
So it’s not even really helping the great, great grandchildren of the composers because their music just isn't being played. And I think any composer would tell you that what they strive for -- their goal in life, or at least their professional goal within life -- is to have their music heard. That’s why they write the music. And sure, they want some payment for it during their lifetime and for several years after they write the piece. That’s what they do for a living, and that’s why copyright law was invented to give creators some financial income for their work and to give them incentive them to create these works. But several generations down the line, I think if a composer were given the option of having their music played versus not having their music played and their great, great grandchildren getting a tiny little royalty check every now and then, they would much prefer to have their music played.
So it’s hurting the composers, it’s hurting the orchestras, it’s hurting the communities that this orchestra serves and really in my opinion it’s really not benefitting anyone.
Bailey: What kind of reaction do you hear from your orchestra conductor colleagues?
Golan: The reaction has been nothing but absolute and unequivocal support from everyone in the industry. I mean I get e-mails, just dozens of e-mails of people thanking me for doing this and how much they support it, is there anything I could do and how horrible that copyright law is when they took all those pieces out of the public domain and how horrible it is for their orchestras and our communities and their students. It’s been nothing but 100 percent support.
Bailey: What about composers? Is there any difference in their reaction? Do you hear from them?
Golan: I do hear from them actually, and again I’ve got nothing but support. There are composers who often do what’s called arranging. For example they might take a piece of music by Prokofiev let’s say, which is professional-level difficult music, and they would arrange it and make it easier so that a junior high orchestra or a high school orchestra could play it. They make a simplified version of it and that’s what they do for a living, they arrange pieces. Well once those pieces got taken out of the public domain it’s not legal to make the arrangements of them.
So those composers and arrangers are not able to use those pieces, and of course the junior high orchestras and high school orchestras are not able to play those pieces, because the arrangements just aren't even being made. They can’t play the original because it’s too expensive. They can’t play a simplified version because it’s illegal to make a simplified version. They just can’t play the piece.
Bailey: Do all contemporary composers do arrangements like that?
Golan: No, not all composers. But I don’t know of any composers that are complaining about what we’re doing with the case because nobody --nobody -- is saying that a composer writing a piece today should not have copyright protection and should not earn royalties from their music or be able to rent it or do whatever they want. Nobody’s saying that. What we’re talking about are pieces that were written decades ago and were in the public domain and have now been taken out of the public domain.
Bailey: Can you say what proportion of contemporary composers would fall into those two categories, those who only write original music and those who do their own work and do arrangements?
Golan: I really can’t. What I would be more comfortable saying is that in terms of people that are making a living at some form of composition, it seems to me that a large percentage would be doing arranging and probably a smaller percentage of people are making a full-time living strictly as an original composer.
Bailey: How do the issues at stake in this case compare to the retroactive term extensions that were challenged in the Eldred case?
Golan: Well they’re definitely related, but they are different. What the copyright extension did, well I guess it’s self-explanatory. They just keep extending the length of copyright protection. Some people call it the Mickey Mouse Law because every time Mickey Mouse is about to become public domain, Disney lobbies Congress to extend the copyright, and because they have so much money and power, they succeed. So every 20 years it gets extended. So you can expect that 20 years from now when Mickey Mouse is about to enter the public domain, Disney will lobby for it not to enter the public domain and they’ll extend copyright again.
I guess they’re similar in that we’re talking about pieces of music and works of art that were created decades and decades ago, and in both cases the laws have completely lost sight of the original intent of our founding fathers in terms of what copyright protection is for.
Copyright protection -- and it’s stated right in the constitution -- was created to promote creative work from authors by giving them financial incentive that if they create a work, for the next 28 years they will be able to reap financial rewards from it. But how does extending copyrights -- or in the case of Golan vs. Holder, taking things out of the public domain and reinstating copyrights of people who have been dead for decades -- how does that provide incentive for those people to create more great works? They’re dead already. They’re not going to be creating much more.
So in that sense I’d say they’re very similar. The way that they’re different is that with Eldred and the copyright extensions, we were talking about pieces that were under copyright currently at the time and they’re just getting their copyright extended. Whereas here we’re talking about pieces that were no longer under copyright protection, were in the public domain, and then have been taken out of the public domain and put back under copyright protection. That’s a fundamental difference.
Bailey: So, in a nutshell, what is the damage caused by taking them out of the public domain?
Golan: It prevents many smaller organizations from performing a large body of work and prevents many smaller communities from having the opportunity to hear such works.
Bailey: How did you get involved in the case originally? I think there was another plaintiff who later died. Was he – did you replace him or were you a part of the original case?
Golan: I was part of the original. That’s an important point. This is not about me. This is about the entire industry -- classical music, orchestral music as an entire industry -- and there are many conductors and other people that are named plaintiffs on case and I just happened to be the lead plaintiff, but I’m by no means the only conductor or person in the industry who’s involved in this.
Bailey: If copyright extensions are driven by Disney's interests, who was pushing for these re-restrictions?
Golan: We’re going a little bit out of my realm of expertise, and you might want to ask that question to someone else. But my understanding was that the U.S. government did it with the hopes that if they did this, then other countries would be more respectful of U.S. works that were under copyright. And so it was like a good faith effort hoping that that would happen, but there was actually nothing in the law itself that required that to happen. And again my understanding -- but I think you should check this with somebody who knows more than I do on the legality of it -- is that in hindsight it didn’t help.
Bailey: So it’s not like there was some hidden lobby of heirs who were starving and looking for their royalty checks.
Golan: No, not that I know of. And again, I mean maybe you could find this out from a composer or you could try to find an heir of Shostakovich. There are three composers who have famous names that were affected like this: Shostakovich, Prokofiev and Stravinsky. Beyond that there are literally thousands of other composers that you’ve never heard of that are affected by this. And those people absolutely are not having their music played. Most audiences want to hear famous things. They want to hear famous pieces, things they’ve heard before.
Now we in the industry, we like to play things beyond the famous ones. From an artistic standpoint we think it’s healthy not only for the performers but also for the audiences to hear things they haven't ever heard before and combine the relatively unknown pieces with pieces they do know and love. And you know often times we try to do that, but once this treaty was passed... I mean now you're saying okay, here’s an unknown piece of music by an unknown composer and your audience has never heard of it. So they’re not really that keen on you programming it anyway. Oh and on top of that, you have to rent it for $600 instead of purchase it for $50.
That treaty was a nail in the coffin guaranteeing that thousands of pieces will not be performed. And going back to your question about how much heirs get from this, the heirs of the vast majority of the composers involved are getting nothing. They’re just not getting played.
And then in the case of the three famous ones -- Shostakovich, Prokofiev and Stravinsky -- you know they have many heirs probably for each one. If the New York Philharmonic plays a Shostakovich symphony, let’s just estimate that all the heirs will get a 10 percent cut, and then that’s split among them. We’re talking about royalty checks of pennies, depending on how many times it’s split. Even if it’s only one person, oh it’s $20.00 – ah great! I got a royalty check.
We’re talking about classical music here. We’re not talking about the Beatles or Michael Jackson. Nobody is going to make a living off royalties from a couple pieces they’re going to play.
Bailey: One of the articles said something about this case changing the physics of the public domain. Is it too much to say that?
Golan: I’m speculating that they're referring specifically to the fundamental premise that once something enters the public domain it’s in the public domain forever. If this law does not get overturned, then yeah, the fundamental essence of the public domain has been changed because it’ll set a precedent that things can be taken out of the public domain. So who’s to say that for whatever reason Congress or anyone else can remove something from the public domain once it has entered public domain.
There’s absolutely nothing in the Constitution or any amendments or any other laws in the 200-year history of the country that ever mentions taking something out of the public domain. There are many statements about things being under copyright, things entering the public domain and various years and extensions, but it would be unprecedented to take something out of the public domain.
Bailey: What is the core issue here for you? What’s motivated you to be involved with this and to continue with it for so long.
Golan: The core issue is wanting to have the ability to perform this great body of literature that we used to be able to perform but no longer can. What we used to do was absolutely legal and in concert with the Constitution, and right now what we’re being told is that what we used to do is now illegal, you can’t do it anymore.
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Filed Under: copyright, golan v. holder, lawrence golan, public domain
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Who needs the public domain
The party is over, get used to it.
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So, I guess, composers, conductors, orchestral performers, and classical music lovers are all "freetards" or "pirates."
Got it.
I'd really love to think this is satire, but sadly, I don't think it is. If it is satire - then well done. You sound exactly like an IP maximalist who doesn't care about musicians or the public.
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STOP FEEDING THE TROLL! It distracts from any real conversation.
The conversation should be, "How should copyright be reworked?"
David ...
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Fair enough.
I actually have
posted my opinions on this very subject in the comments here. I should probably just make a post on my own website...
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Re STOP FEEDING THE TROLL!
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WOW! Now I know about marking up / renting sheet music!
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Re: WOW! Now I know about marking up / renting sheet music!
I won't be like some of the others and tell you to leave. I won't tell you that you shouldn't be entitled to your opinion, no matter how wrong headed I think it is. I will just say that if you were to leave I would personally not miss you, but I do wish you the best. I hope your mother starts hugging you enough (or hugs you less...whatever needs to happen).
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> I GO ELSEWHERE. You've been warned.
So go find a cartoo or pop-up book that's more your speed.
Don't let the door hit you in the ass on the way out.
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Re: WOW! Now I know about marking up / renting sheet music!
Just so you know, it's an INTERVIEW. Where one person gets asked questions and often gives a few long answers. Get over it.
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see ya
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If he really loves a piece, he can commission a new recording of it, licensing the music and getting an orchestra to perform it.
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The PRS et al are harming their long-term prospects in order to swell their coffers now. Which is bad for everyone.
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You also would have read that he has absolutely no problem for paying for music that is in the public domain. Let me say that again. He has no problem paying for music that is in the public domain.
He could, if he wanted to, find public domain music online, in an archive, etc. and make copies of it himself. Then he would only have to pay for copying the music. But he has no problem going to a publisher and paying them because presumably, they make his life easier by having copies on hand so he doesn't have to spend time searching for it/copying it.
Like Mike has pointed out in the past. The internet won't entirely get rid of middle men. There is still money to be made for them. Even from public domain works.
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If you think a recording and a live performance are the same thing, I think you are missing out. Go see some life orchestras and symphonies. They are wonderful moving experiences and no two are alike.
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> to want to misunderstand) is that almost all
> music is able to be licensed for performance.
He actually specifically said just that. He said the problem is that only the major symphonies have the budget to pay the licensing fees, so thousands of smaller bands and orechestras have just had their entire repertoires yanked out from under them.
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Nearly the entire article was about such licensing, and why it is not a viable option for most orchestras.
Furthermore, he explicitly talks about things that can be done with the music, that cannot be licensed - such as creating a derivative work, of a skill level such that it can be performed by a youth orchestra.
Such derivative works are the bread-and-butter of living composers, who have lost a significant source of income.
If he really loves a piece, he can commission a new recording of it, licensing the music and getting an orchestra to perform it.
Golan is a conductor. How does commissioning a new recording of it, help orchestras perform the piece?
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Perhaps Mr. Golan is correct, but having dealt for many years with purchase/licensing for musical theater, much of which does involve symphonic accompaniment, it would be beneficial to have in hand a copy of a typical contract associated with merely symphonic works in order to ascertain if, in fact, Mr. Golan is correct.
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Now your experiences may definitely be different depending on what publishers you've worked with and what country you live in. Here in the US this is a very real thing that happens.
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As far as the audits go. I heard that some publisher turned up at a regional music contest one time and was going around looking for people with photocopied sheet music. Not sure how accurate it was or if anyone actually got in trouble if it did happen. But that was what our director told us.
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For shame Mike for shame.
I think Mike should have a crackdown on such wild-west comments that violate the LAW.
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Thank you for noticing.
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There is a cruise missile heading for your house, make peace with your family.
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> copy of a typical contract associated with
> merely symphonic works in order to ascertain
> if, in fact, Mr. Golan is correct.
Yeah, I'm sure the conductor of the Phoenix Symphony Orchestra has no idea what he's talking about.
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I can hardly wait ...
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So in that sense I’d say they’re very similar. The way that they’re different is that with Eldred and the copyright extensions, we were talking about pieces that were under copyright currently at the time and they’re just getting their copyright extended. Whereas here we’re talking about pieces that were no longer under copyright protection, were in the public domain, and then have been taken out of the public domain and put back under copyright protection. That’s a fundamental difference.
I believe this last statement is false. Golan's attorney tried to frame this as an issue of something falling into the public domain after having been in copyright too, and the Justices called him out for it. These works were never under copyright in the U.S. There is a difference between granting something a copyright that's never had it before, and granting a copyright to something that had a copyright but then fell into the public domain. The former is clearly constitutional, the latter is probably not.
I think this difference is critical to how this case will be decided.
The Copyright Clause argument is a straight up loser since this is clearly a rational exercise of Congress's Article I power under the Clause. The argument that it's not for a "limited time" and that once something is in the public domain it must remain there is silly. That's not what Clause 8 says. And as a matter of fact, it's happened before--works that were in the public domain have been thereafter put under copyright.
The only argument that has any teeth is the First Amendment argument, but that's a loser as well. Since we're talking about the right to make other people's speech, the Amendment "bears less heavily." And as long as the "traditional contours" are not being altered, as they aren't here, then "further First Amendment scrutiny is unnecessary." Granting copyright to works that have never had copyright is explicitly what Congress is allowed to do under the Copyright Clause. They aren't yanking works out of the public domain that once had copyright protection. The difference is subtle, but I think it's critical to the "traditional contours" analysis.
I sympathize with Golan's position, but this is a matter of policy choices, not a matter of constitutional law. His remedy is in Congress and in the ballot box.
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We are not talking about the right to make another person's speech. That is one of the biggest logical fallacies of the Supreme Court's Eldred decision. Golan talks about the work that the orchestra puts into the work. When they perform the work, they are performing an act of original expression (which can get a copyright). That is the speech that is being prevented. They could freely add their expression to works in the public domain. Now they either can't do what they could before or they are at least constrained.
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And yet, historically, works that were in the public domain have been given copyright protection. It's happened more than once.
We are not talking about the right to make another person's speech. That is one of the biggest logical fallacies of the Supreme Court's Eldred decision. Golan talks about the work that the orchestra puts into the work. When they perform the work, they are performing an act of original expression (which can get a copyright). That is the speech that is being prevented. They could freely add their expression to works in the public domain. Now they either can't do what they could before or they are at least constrained.
The reliance parties can certainly make a claim under a Just Compensation theory for taking away whatever property rights they might have in those works. It's not a First Amendment issue though.
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While their might be a property right, that is not the right we are talking about. The expressive party has the right to make their expression on any work that is in the public domain; when the public domain is shrunk, that expressive right is being taken away.
"Reliance party" is an just a way to obfuscate what is really going on, IMHO. Party that is getting the copyright on what was in the public domain is really the "Usurpation Party." The usurpation party should have not expectation of a property right in what is in the public domain. Their misplaced desire to make a metaphorical land grab does not trump the public's constitutional right to expression of what is the public communal property.
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If you just read the Tenth Circuit opinion below, the brief for petitioner, the brief for respondent, and the Supreme Court oral argument transcript, that'll get you up to speed. All of those are linked to there.
I like "usurpation party." I might borrow that. Don't get me wrong, I really am sympathetic to Golan's cause. I just don't think that under current doctrine he's on the winning side of the debate. I predict that the Court will just extend the holding in Eldred a little further. If anything, Golan will just be doing more harm to his side of the debate since the First Amendment is going to get kicked squarely in the balls by the Court. I love the First Amendment as much as the next guy, but you can't deny that the Copyright Clause exists and clearly says that Congress can do exactly what it did right here.
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And yet, people have been beaten to death and robbed of their valuables. It's happened more than once.
Doesn't mean it's the way things should be.
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Wrong, boy.
Pre-1976 copyright required registration with the Library of Congress as well as deposit of two copies, or the work was automatically PD.
If registration was done, protection existed for 28 years.
If renewed at the 28th year, another 28 years of protection were granted (A total of 56 years), then into the PD.
If renewal was not done, the work became PD at the end of the 28th year!
Creations after 1976 are another matter entirely.
But we're talking pre-1976 works here.
Learn the law, boy.
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Go back and read the piece, boy, and when you act like and adult, I'll address you as such.
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REPORTED on suspicious behavior and posting weird stuff about boys.
Lets see how creeps like him deal with the F.B.I
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> something a copyright that's never had it
> before, and granting a copyright to something
> that had a copyright but then fell into the
> public domain.
There's also a difference between granting something a copyright at the moment of its creation and granting something a copyright which was created long ago and has been in the public domain for decades or centuries and which the public has come to rely upon as part of freely shared culture.
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Yes, those are different. But how is that difference constitutionally relevant? The Copyright Clause says Congress can give authors exclusive rights for limited times. That's what Congress has done here. Nowhere does it say in the Constitution that the work must be newly created. That's a policy issue, not a constitutional issue.
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There is a textual argument there that I actually like. That one came up in the oral arguments. The Constitution says that the rights must be given to "authors." If an author is dead, then you can't give the right to an author--you'd have to give it to his heirs or assignees.
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You always ignore the first part of the clause. Let's all say it together:
"To promote the Progress of Science and useful Arts..."
The works we are referring to had no need of an exclusive right in the US to be created. If they needed an exclusive right, they would've been registered with the Copyright Office, since that was required pre-1976. There is no possible argument you can make to avoid that fact.
Granting an heir (that was not involved in the creation of the work) an exclusive right does not promote the progress of the arts either in respect to the previously created works, nor any new ones.
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I think I see the problem.
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Also, that is complete crap.
One of the primary roles of the Court is to slap Congress down when it over-extends itself beyond the powers it has been granted in the Constitution.
I'm not quite sure what could be held up as a better example of Congressional overreach (not to mention corruption) as taking tens of thousands of works of art from the public and granting monopoly privileges over them to some random group of people and companies for no reason other than that random group wants to make money.
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It's frustrating as hell because if they get it wrong (Grokster for example) we all suffer while they can choose which cases to hear every year.
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I'm not quite sure what could be held up as a better example of Congressional overreach (not to mention corruption) as taking tens of thousands of works of art from the public and granting monopoly privileges over them to some random group of people and companies for no reason other than that random group wants to make money.
But it wasn't for "no reason." It was to harmonize U.S. with foreign law. By doing this, we're guaranteeing that other countries will do the same thing for U.S. works. All Congress is doing is giving works the remainder of the very copyright term that these works would have had but for the absence of a treaty with certain countries. If there had been a treaty at the time these works were created, they would have gotten this same copyright protection.
I understand that some people don't like this, but legally speaking, this is easily constitutional under the Copyright Clause. Rational basis review is very deferential to Congress, and that's all the scrutiny the Court will use here.
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That's bullshit. This hasn't worked in the past, why do you think it will work now? Just because we do it does not guarantee that others will follow. If anything they will balk just to avoid being like us.
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Regardless, whether or not the agreements will work is not a constitutional issue for the Court--that's a policy issue.
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Insert parental comment about friends jumping off bridges.
Just because some other country makes some stupid law doesn't mean we need to harmonize our laws to be just as stupid as them.
All Congress is doing is giving works the remainder of the very copyright term that these works would have had but for the absence of a treaty with certain countries. If there had been a treaty at the time these works were created, they would have gotten this same copyright protection.
Since you seem to have forgotten, and never responded to that part, I already addressed that. I'll repeat:
The works we are referring to had no need of an exclusive right in the US to be created. If they needed an exclusive right, they would've been registered with the Copyright Office, since that was required pre-1976. There is no possible argument you can make to avoid that fact.
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You missed my point. As long as Congress had some rational basis for creating this Act, then the Court will not second guess that reasoning and strike it down. Congress makes judgment calls about policy, not the Court. Here, Congress has several rational bases for passing this Act. You may not agree with those bases, but that doesn't make it a constitutional issue.
Since you seem to have forgotten, and never responded to that part, I already addressed that. I'll repeat: The works we are referring to had no need of an exclusive right in the US to be created. If they needed an exclusive right, they would've been registered with the Copyright Office, since that was required pre-1976. There is no possible argument you can make to avoid that fact.
That's one argument for your side, and there are counter-arguments for the other side. Both sides have rational arguments. So what? It's a policy issue, not a constitutional issue. In other words, this is for Congress to decide, not the Court.
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That's one argument for your side,
Unbelievable. How can you have such blatant cognitive dissonance?
You say there's no Constitutional issue, than 2 seconds later say that I have an argument based on an obvious conflict between the Constitution and this law.
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You say there's no Constitutional issue, than 2 seconds later say that I have an argument based on an obvious conflict between the Constitution and this law.
Your argument (if I understand it correctly) seems to assume that since this Act cannot incentivize the creation of works that have already been created (itself an obvious impossibility), then the Act is per se unreasonable. That argument is based on the false assumption that those are a necessary kind of incentive under the Copyright Clause. As the Justices discussed in the oral arguments, and as Golan's attorney finally conceded, there are other incentives created by the Act that can be said "to promote the progress."
The preamble to the Copyright Clause only requires that a law "promote the progress" in a general sense. As long as the government can point to one way that it "promotes the progress," the constitutional inquiry is over--the Act is reasonable and constitutional. Sure, you can argue all day long that other things Congress could have done would have "promoted the progress" better, but that's a policy issue (and not a constitutional one).
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Just my opinion, but before launching off on a tirade about the issue that the statute is intended to address, it seems to me that one at the very least they should actually read the statute. Not that it would change their opinions, but perhaps it would assist them in presenting comments that are not scattered in every direction imagineable.
By focusing solely on this amorphous thing known as the "public domain", they miss the opportunity to gain a more comprehensive understanding of how Article 1, Section 8, Clause 8 is not as cut and dry as they seem inclined to believe, and that the First Amendment is not an "absolute".
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That's what this case is about. That's all this is about - the removal of works from the public domain. Maybe you need to read the relevant law.
17 USC 104a:
"Any work in which copyright is restored under this section shall subsist for the remainder of the term of copyright that the work would have otherwise been granted in the United States if the work never entered the public domain in the United States."
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Yes, works in the public domain are given copyright protection under this Act. So what? The Copyright Clause does not say this can't be done.
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If you study the Berne Convention and the Uruguay Round Agreements Act, then these issues will come to the fore as you peruse the statute.
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Again with the dissonance. Your first start out saying that I am assuming, with all the negative connotation thereof, something which you then agree with is true. You agree that it is impossible to incentivize the creation of an already existing work.
By definition, a law which tries to do something that is impossible is not reasonable.
there are other incentives created by the Act that can be said "to promote the progress."
I thought we agreed it was impossible to incentivize the creation of already existing works?
Are saying that it is possible to "promote the progress" in regards to future works being created by the government seizing these existing works from the public and then giving them to private interests? If so, might I remind you of the Fifth amendment?
"...nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
So where's my just compensation?
I realize it says private property. In this context, in simple terms, "public" was something which was owned by the government, while "private" was something owned by citizens. Since the case we're talking about is certainly the government taking something away from all citizens to be given to a private interest and no longer usable by the citizens, the Fifth applies.
If that's not your argument, then please be clearer.
As long as the government can point to one way that it "promotes the progress,"
Ok, so point to it. Be specific. Evidence is preferred. And if you can, show how it would not have happened without this act.
You can keep saying "policy" all you want, but policies are created by laws, which are subject to the Constitution.
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By definition, a law which tries to do something that is impossible is not reasonable.
Nope. If it can "promote the progress" in other ways, then it's reasonable, rational, and therefore constitutional. I'm just repeating myself here.
I thought we agreed it was impossible to incentivize the creation of already existing works?
Are saying that it is possible to "promote the progress" in regards to future works being created by the government seizing these existing works from the public and then giving them to private interests? If so, might I remind you of the Fifth amendment?
"...nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
So where's my just compensation?
I realize it says private property. In this context, in simple terms, "public" was something which was owned by the government, while "private" was something owned by citizens. Since the case we're talking about is certainly the government taking something away from all citizens to be given to a private interest and no longer usable by the citizens, the Fifth applies.
If that's not your argument, then please be clearer.
When I say there's no constitutional issue, I'm referring to the Copyright Clause and the First Amendment--the issues raised by Golan. There is a Fifth Amendment issue here (and I even said so above), but that wasn't an issue that Golan chose to argue on appeal. That's a shame because I actually think that claim is more colorable.
Ok, so point to it. Be specific. Evidence is preferred. And if you can, show how it would not have happened without this act.
You can keep saying "policy" all you want, but policies are created by laws, which are subject to the Constitution.
Read the government's brief, or better yet, read/listen to the oral arguments. Golan's attorney even concedes this point after much prodding from the Justices.
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Merely by way of one trivial example, foreign works currently receiving little, if any, "play" in the United States may be disseminated on a broader scale because of the incentive to the foreign author/rights holder associated with the statute.
Do keep in mind that 104a is a transitional statute limited solely to foreign works that are still under copyright in their countries of origin.
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Merely by way of one trivial example, foreign works currently receiving little, if any, "play" in the United States may be disseminated on a broader scale because of the incentive to the foreign author/rights holder associated with the statute.
And I think that's the example that Golan's lawyer conceded to during oral arguments.
Do keep in mind that 104a is a transitional statute limited solely to foreign works that are still under copyright in their countries of origin.
Right. It's not like they're raping and pillaging the public domain willy-nilly, as the alarmists and sensationalists are framing the issue. Congress is giving works that never had copyright protection in the U.S. the remainder of the protection these works would have had but for certain international circumstances that existed in the past. And in return, these foreign countries are doing the same for U.S. works. This is a straightforward application of the Copyright Clause. All the hand-waving and whining doesn't change that.
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Funny how the Court has no problem doing just that in other areas. What makes copyright so special and sacrosanct?
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The Constitution permits Congress to secure exclusive rights to authors for limited times. Congress gets to decide the details of those rights--the Court will not second guess policy choices. It's "special sacrosanct" because it's right there in Article I. I know you guys don't like it, but that's what the Constitution says.
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Since when is 100+ years with 20 year extensions every 20 years "limited"? If the term of copyright is going to be extended another 20 years every time the copyright on Mickey Mouse is about to expire, then the term is for all practical purposes forever. Or is this just a gimmick congress is using to get around the "limited" clause and still have eternal copyright?
I say they should revert back to the original term of copyright for 14 years, and charge a fee that cubes every time the holder wants to extend it. $10 for the first extension, $1000 for the second, $1 billion for the third...
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The Constitution permits Congress to secure exclusive rights to authors for limited times. Congress gets to decide the details of those rights--the Court will not second guess policy choices. It's "special sacrosanct" because it's right there in Article I. I know you guys don't like it, but that's what the Constitution says.
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Because at that point it becomes a free speech issue. The government is essentially censoring huge swaths of culture. And since the Bill of Rights postdates the Copyright Clause, it is superior to the Copyright Clause.
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It doesn't become a free speech issue. You can try and frame it that way, but the Court made clear in Eldred that they're not going to second guess Congress's copyright laws from a free speech perspective. In Eldred, they tried to frame it as a free speech issue too--the Court did not buy it.
The Supreme Court does not consider the First Amendment to be "superior" to the Copyright Clause. It doesn't work that way. Copyright laws that follow traditional contours will not be given any First Amendment scrutiny. The fact is that the Copyright Clause says Congress can grant authors exclusive rights for limited times. As long as Congress is doing that, as they are doing that here, then the First Amendment is not invoked.
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Copyright to... heirs?
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Because an author can't be incentivized to create when they're dead?
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That being said, my disclaimer is that I think copyright should be abolished. However, the deal was what the deal was at the time of creation/publishing, and should be upheld. Retroactive copyright term extensions are wrong for the same reasons, and so I hate those.
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Here's the copyright clause
"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
Yes, copyright IS granted to one work as an incentive to create another.
For example, take the book "To Kill a Mockingbird" by Harper Lee. It is the only book she has ever written, published in 1960. By what I understand of US Copyright law, she's failed to uphold her part of the bargain: control over the publication of the book in exchange for more works. She hasn't published anything else, so by all fairness, she should lose her copyright of the book.
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Copyright grants some control to the author, and that control is the incentive. Some see it as profit incentive, some as exclusivity incentive until the next work can be made, some as just the control incentive (stopping others from altering it). However you want to use that copyright control (within the terms stipulated) is the incentive, but actually reaching that goal (profit, next work, etc) is not necessary for the obtaining of the copyright, only the actual publishing of the current work. With your interpretation one could argue that copyright should last until the author profits off of it, which for some works would mean eternal copyright.
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It's not. Copyright is NOT an inheritance. New author, new work. That should be pretty evident IMO.
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The only problem with this is that the current term is the life of the author + 70 years, so there will always be 70 years left on the copyright when the author dies. Even if the term is taxed down to 50 years, with 20 year extensions every 20 years it will still never expire.
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Also bad for new composers
Orchestral composers don't have the luxury that rock musicians have in that they can't perform their pieces themselves, or get a few friends together to do it. You simply can't form an 80-100 piece orchestra in your garage.
So you need to get an existing orchestra to play your music. If you know your stuff, convincing them is usually easy. Orchestras generally want to play new music. But the problem is that unless your name is Philip Glass or John Adams, nobody knows who you are. If an orchestra were to put on a concert featuring only new classical music, nobody would come apart from the composers' friends and family.
So what orchestras do is put on a concert featuring both established music and new music on the same bill. People will pay good money to experience The Rite of Spring performed live, and in the process, will be exposed to some new music as well. And that's how the next generation of famous classical composers is born.
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Kidnap of the Public Domain
t doesn't do the public any good (they can't hear the music), it doesn't do the performers any good (they can no longer afford to play the music), it doesn't do the composers any good (they're all dead anyway), it doesn't help the heirs (they'll get only pennies), it doesn't do arrangers any good (it's now illegal to make new arrangements), it even hurts the movie industry because there are now no previous works they can build new or derivative works on (they're all locked up under copyright).
All this law is going to accomplish is to turn a vast array of classics into orphaned works, to be locked away and lost forever. Everybody loses, nobody wins.
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What's this guy's beef?
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