Supreme Court Chooses SOPA/PIPA Protest Day To Give A Giant Middle Finger To The Public Domain
from the ridiculous dept
We've been talking about the Golan case, and its possible impact on culture, for years. If you're unfamiliar with it, it's the third in a line of cases, starting with the Eldred case, to challenge aspects of copyright law as violating the First Amendment. The key point in the case was questioning whether or not the US could take works out of the public domain and put them under copyright. The US had argued it needed to do this under a trade agreement to make other countries respect our copyrights. Of course, for those who were making use of those public domain works, it sure seemed like a way to unfairly lock up works that belonged to the public. It was difficult to see how retroactively taking works out of the public domain could fit into the traditional contours of copyright law... but today, on the day of the big SOPA/PIPA protests... that's exactly what happened (pdf).The ruling is ridiculously depressing. The Justices basically just keep repeating the mantra they first set forth in Eldred, that as long as Congress says it's okay -- and that the "fair use" and the "idea/expression" dichotomy remain -- all is just dandy. They also claim that since the very first copyright law took works from the public domain and gave them copyright protection, clearly there's nothing wrong with removing works from the public domain. This decision reinforces why the Eldred decision was a complete disaster, and just keeps getting worse. The Eldred ruling basically ignored the fact that copyright had changed entirely in a way that went against the First Amendment... by retroactively granting copyright extension. Now that ruling is being used to take works out of the public domain as well.
First, as with Eldred (and the second case in the trilogy, the Kahle case), I believe that the Court is greatly mistaken in its analysis of copyright law. First it claims that there's little fight between copyright and the First Amendment because the two things were put in place at about the same time. That's a specious argument for a variety of reasons. First, the original copyright law was significantly limited in a way that it was unlikely to really come into conflict with the First Amendment. It was limited to just a few specific areas, and for a very short period of time. It's only now that (1) copyright law has been totally flipped to make just about everything you create covered by copyright, (2) the law has been massively expanded in time and (3) changes in technology make us all create tons of "copyrighted" material all the time -- things have changed an entirely. It's hard to see how the Court can reasonably argue that the traditional contours of copyright law have not changed... but that's exactly what it does. Stunningly, the majority decision here, written by Justice Ginsburg, seems to suggest that there's no First Amendment issue here, because if people want to make use of the works that were previously, but are no longer, in the public domain, they can just buy those rights:
But Congress has not put petitioners in this bind. The question here, as in Eldred, is whether would-be users must pay for their desired use of the author’s expression, or else limit their exploitation to “fair use” of that work. Prokofiev’s Peter and the Wolf could once be performed free of charge; after §514 the right to perform it must be obtained in the marketplace.It's a really frustrating decision, because it appears to lack any recognition of just how much copyright law has changed and expanded. It seems to lack -- as it did in Eldred -- any sense of how overreaching copyright law is, in fact, stifling free expression everyday. It's a tone deaf response to what's actually happening.
The dissent, by Justice Breyer (with support from Alito), seems to actually understand this. The rest of the Justices (excluding Kagan, who recused herself due to her role in the case prior to joining the court) just don't seem to want to bother to understand. The dissent, however, kicks off with a quote from Thomas Macaulay's famous speech on the problems of copyright, noting that copyright is, by definition, "a tax on readers for the purpose of giving a bounty to writers." They then note that the decision to remove works from the public domain fails to uphold the basic premise of copyright law:
The statute before us, however, does not encourage anyone to produce a single new work. By definition, it bestows monetary rewards only on owners of old works -- works that have already been created and already are 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.Breyer -- who has always had a much stronger grasp on copyright than his colleagues -- notes that the whole point of copyright law is to encourage new works, and that the Founders themselves recognized that "monopoly is a two-edged sword, that must be wielded carefully. Breyer quotes the early words of James Madison to Thomas Jefferson, that copyright should be granted, but only "in certain cases.... with caution and guarded with strictness agst abuse" and solely such that it acts as "compensation for a benefit actually gained to the community... which the owner might otherwise withhold from public use."
How taking works out of the public domain accomplishes that goal mystifies Breyer (and me and many others).
Separately, he notes that Congress and the Court have both made it clear in the past that copyright is for the benefit of the public, and not solely to grant rights to authors. The granting of monopolies to authors is the method by which the public might benefit, but not the purpose of copyright law. Retroactively seizing works out of the public domain does not benefit the public. And thus, is unconstitutional. Except... to the six justices who chose not to understand copyright law.
That the Supreme Court released this on the same day of widespread protests against overreaching copyright law is a bit of unfortunate irony. The truth is that Congress is the one who could fix this by actually fixing copyright law and making it clear that the Court's interpretation was wrong. But, instead, because Hollywood pays the bills, they only make copyright law worse. While it's easy to blame this ruling on the Supreme Court, it really implicates Congress. And, thus, it's actually depressingly fitting that this ruling came out today.
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Filed Under: copyright, culture, first amendment, golan, public domain, supreme court
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Article 1 Section 10
Congress was given copyright to promote more widespread knowledge and learning. However, they don't have to use it. The Supreme Court's role is to understand these laws. If they were truly Originalists, then they can not deny the one section that shows copyright to be unconstitutional as it is:
Clause 1: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
The definition of EPF law equates to no retroactive laws, or laws that increase punishments for what was once legal. From the looks of it, we have a Supreme Court that seems intent on following an ideology, not understanding the flaws of copyright in this regard.
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Re: Article 1 Section 10
Why does it matter any more?
The justices have SPOKEN. The decision is FINAL.
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Re: Re: Article 1 Section 10
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Re: Re: Re: Article 1 Section 10
Dude... �loller-coasters�.
That is the word, right? I mean that is the correct word, �loller-coasters�. I've never used that word before, myself, so I'm not quite sure that I'm using it correctly. But I think I understand what it means. And I think I got the syntax right: �Loller-coasters�.
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Re: Re: Re: Re: Article 1 Section 10
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Re: Re: Re: Article 1 Section 10
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Re: Re: Re: Article 1 Section 10
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Re: Re: Re: Re: Article 1 Section 10
If they can make up a completely unheard of guaranteed right (privacy) and say it's in the Constitution somewhere... if they can declare that a person's mere existence affects interstate commerce and therefore confers federal jurisdiction over absolutely anything... if they can do those things, then telling Congress that the Copyright Clause doesn't allow them the authority to retroactively seize the public domain is hardly an abuse of judicial power.
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Re: Re: Re: Re: Re: Article 1 Section 10
The Supreme Court has not shied away from �making policy� when they thought they could get away with it. OTOH, the court has had a fairly admirable sense of discretion in deciding whether or not they could �get away with it�. At least they have displayed that discretion ever since Scott v Sandford and its aftermath�or maybe it's been since Roosevelt's �court-packing� plan.
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Re: Re: Article 1 Section 10
You're right, in the most part, it doesn't matter any more.
Even now, and more so as technology progresses, anyone who so chooses can totally ignore copyright law in the privacy of their own home.
People who might want to do so in public, however, like symphony orchestras, are still out of luck. They are a small group compared to the general public, however.
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Re: Re: Re: Article 1 Section 10
Even major symphony orchestras rely HEAVILY on public domain works (everything from Byrd and Palestrina to Beethovern and Wagner or currently in the public domain) to stay within a budget (which, unlike our government, they actually stick to).
What this ruling does is effectively make sure that orchestras will play less 20th century (and newer) music each season in order to keep their music budgets in tact. And what this ruling really accomplishes is that less and less of the public will have the opportunity to get exposure to amazing pieces of music that had been available previousy for decades.
This ruling was all about public performances, so I don't know why you bring privacy of your own home into this discussion.
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Re: Re: Re: Article 1 Section 10
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Re: Re: Article 1 Section 10
The Internet has decided to overrule it.
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Re: Re: Article 1 Section 10
I suddenly feel like there's an objection to what you assert...
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Re: Re: Re: Article 1 Section 10
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Re: Re: Re: Article 1 Section 10
Listen, today was fun and all. But we did not overload Congress's phone lines all day long. By afternoon, calls were being answered fairly quickly.
As far as the Supreme Court is concerned, well, this is the third in a trilogy of cases that they've taken recently. Eldred, Kahle, and now Golan. It seems unlikely that they will grant cert for another challenge in this generation.
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Re: Re: Re: Re: Article 1 Section 10
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Kahle? It was denied cert
You are, however, depressingly right, that any kind of copyright reform isn't going to come from that direction.
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Re: Kahle? It was denied cert
After you read enough appellate decisions, you begin to realize that Supreme Court justices are some of the all time greatest trolls.
Look at what the court does. Never mind what they say.
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Re: Re: Kahle? It was denied cert
(A non-maximalist is allowed to dream, no?)
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Re: Re: Article 1 Section 10
Everything else can and probably will be changed with time.
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Re: Re: Article 1 Section 10
The justices have SPOKEN. The decision is FINAL.
Hasn't the Supreme Court reversed itself on a number of occasions?
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Re: Re: Re: Article 1 Section 10
Eldred, then Kahle, and now Golan. I do not expect the Supreme Court to grant cert again on this issue in my lifetime.
Seventy years after I'm dead? Who knows. A decision must generally be severely undermined by subsequent decisions before the court finally overrules itself.
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Re: Re: Article 1 Section 10
When the justices have previously pointed out that copying is NOT stealing, you ignore their FINAL SPOKEN decision.
Hypocrite much?
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Re: Article 1 Section 10
Moreover, ex post facto as a general concept and ex post facto as a constitutional matter are not one in the same. The distiction as it relates to Article 1, Section 10 is explained in detail at:
Calder v. Bull, 3 U.S. 386 (Sup. Ct. 1798)
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Re: Re: Article 1 Section 10
The foundations of tyranny are built on the backs of the people nobody cares to protect, and by the time anyone else cares, it's too late.
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Re: Bloody Paper
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Re: Re: Bloody Paper
Spare us the dramatics.
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Re: Re: Re: Bloody Paper
Here ya go:
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Re: Re: Re: Bloody Paper
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It's both of their faults.
These copy protection extensions effectively make copy protections not last a limited time, which is unconstitutional.
These copy protection extensions do nothing to promote the progress of the sciences and useful arts.
The courts should read the constitution and rule accordingly.
Perhaps if jurors would exercise jury nullification on all copy protections, even ones a day old, in protest of the fact that the public isn't receiving anything back from these laws and that they do nothing to promote the progress and no longer last a limited time, that might encourage congress to actually change the laws to better serve the public interest. What the government and the courts are doing here is outrageous and we need to protest!!!! and if enough jurors participate in jury nullification it could at least serve as a burden to the courts to enforce these laws, even if they attempt to find ways around jury rulings (it still imposes additional resources and costs).
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Re:
From Justice Ginsburg's opinion (for the court):
(Citations omitted.)
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Re: Re:
Which really doesn't negate the fact that copy protection extensions do nothing to promote the progress and are hence unconstitutional.
But the court can just interpret the constitution however it wants even to the extent of simply ignoring it.
What the courts did here is unconstitutional. There is no way around it, the courts made an unconstitutional decision.
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Unconstitutional according to whom? Some anonymous guy on the internet?
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Who I am is irrelevant, the arguments I make are relevant.
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Re: Re: Re: Re:
Yes, and I want the government to represent me and others who agree with me no less than they represent IP extremists. If I am to have a representative government then I should voice my opinion, which is what I'm doing.
You can agree with the Supreme court's decision and interpretation and I can disagree. and I disagree and I am voicing my disagreement. Do I claim to be the ultimate authority over constitutional interpretations? No, but I do have an opinion and there is nothing wrong with voicing it. Others who read it can decide for themselves who's opinion has the most merit based on the arguments made, me or yours or the courts. It's called democracy.
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Re: Re: Re: Re: Re:
Do you want to be like Humpty Dumpty?
When you use a word like �unconstitutional�, what do you want it to mean? The Supreme Court disagrees with you. Most probably Congress disagrees with you. Most likely the President disagrees with you. Most attorneys will disagree with you. And most of your fellow citizens will look at you like you're a sad, pathetic Humpty Dumpty.
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[citation needed]
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Re: Re:
It is not up to us to decide if what congress does or not achieve the desired results and purpose of the law.
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How can the Supreme Court say that with a straight face?
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Re:
I always thought the Copyright Act of 1976 and the "Sonny Bono" Copyright Term Extension Act were just hypothetical "suggestions", now the Supreme Court said they were, and their decision is FINAL.
How can the Supreme Court say that with a straight face?
They're going to Disneyland???
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Re:
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When I see the headline I almost think that someone is taking Romeo & Juliet, republishing it and then claiming they own the copyright, ie taking it out of public domain and putting it back in private. I'm not done reading the entire ruling because there are a lot of cases referenced here, but Beyer is correct and the other justices seem to recognize that copyright is about the dissemination rather than the creation, ie create all you want, but the dissemination is why the laws are needed. And that makes sense because I could re-write 3D Studio Max at home as software or record White Collar on TV, but the moment I disseminate or claim (implicit or not) ownership to it in any fashion, that's bad�.
I'll just keep reading and see what gives at the end :)
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Which original intent? The first Congress's intent in 1790? Parliament's intent in 1709? Parliament's intent in 1662? The Stationer's Company intent?
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A Nota Bene:
I should have said:
An important difference. My apologies.
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Re: Re: Re: Re: Re:
"Copyright Forever" was urged in Millar v Taylor (1769). And James Madison, at least, seems not to have been aware of Donaldson v Beckett, which is perhaps not surpising, as he may have had other things on his mind in 1774, or perhaps even '75 or later before the news first came across the Atlantic.
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Unfortunately "promoting the progress" was never the intent - it was only the excuse.
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Not back then. Back then, Copyright was opt-in and only lasted for two terms, 14 years a term. Also, 95% of works weren't copyrighted. Copyright back then was nothing like it was today.
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Excellent point. That's why we have to make congress dependent on the people, and not the funders.
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That seems like a blank check to put works into perpetual copyright to me.
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In the rest of the world the "rule of the shorter term" is applied. The US is anomalous in failing to do so.
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Re:
If a work is under copyright for 100 years in the US, then it should enter the public domain Jan 1 of 101st year after creation. Just because copyrights last for 115 years in France, that should not be a reason to deny the public access in the US.
To take this to an extreme, what is a country decides that copyright should last forever. Because that one country has made that decision, then all creative works from that country would never enter the public domain in any other country that honors that treaty.
This is a bad ruling based on a bad treaty. I really don't see how this benefits anyone.
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Book burning
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Re: Book burning
[/troll]
I'd never thought of it that way, that is *VERY* insightful. In fact, I'm going to use that explanation later--likely many laters.
Thank you.
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Re: Re: Book burning
But that would be infringement!
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Re:
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Breyer got it right
.
I'm glad someone in Washington DC gets it. Piracy is caused most of all by a lack of access. Making everything copyrighted removes such access.
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Re: Breyer got it right
Breyer got out-voted: 6-2.
I'm glad you brought that up. And also that you used the past tense.
Ginsburg's opinion, despite the rhetoric, despite any obiter dicta, signifies a victory for the "property" foundation for copyright.
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Re: Re: Breyer got it right
I am depressedly aware of that.
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Re: Re: Breyer got it right
Perhaps this is partly what we are protesting.
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Re: Re: Re: Breyer got it right
Partly why I am protesting: Yes.
Partly why you are protesting? I don't know. Tell me.
Partly why the average person who was pursuaded to call up Congress today made their call? I am rather doubtful that we've managed to educate people on the centuries-long argument between "property" and "monopoly."
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Re: Re: Re: Re: Breyer got it right
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Re: Re: Re: Re: Re: Breyer got it right
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Re: Re: Re: Re: Re: Re: Breyer got it right
It is part of the reason taxes on real property are so high. To pay for imaginary property.
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Re: Re: Breyer got it right
No it signifies the victory of the force majeure foundation of copyright. If the property argument was taken seriously then the restored copyrights would revert to the original creators - who sold their rights on the basis of the original term. Earlier term extensions have attempted to take this anomaly into account - the latest ones seem not to have.
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Re:
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The comparison to original US national copyright law is apt; whereas before each state had different laws about what could be copyrighted and for how long, when the federal laws went into effect it caused *some* works which were public domain in *some* jurisdictions to go back under copyright. There wasn't much complaint though, because the consistency afforded by having just one set of laws was generally considered a fair price to pay.
Now look at Golan. This is the US complying with an international treaty, in which we agreed to begin respecting the copyrights of works from foreign countries whose copyright we had not previously respected, in exchange for them respecting ours, and this has caused *some* works in *our* jurisdiction to go back under copyright. A fair parallel, I think.
Let me point out something important here: Prokofiev (and three other soviet-era composers) *sued* a US company for using their works, and the US courts said 'too bad, your communist copyrights are no good; everything you make is considered public domain here.'
http://en.wikipedia.org/wiki/Copyright_law_of_Russia#Copyright_on_Soviet_and_Russian_works _in_other_countries (If you can't figure out how to turn of javascript, check it tomorrow.)
Yes, copyright was used as a cold-war pawn. And you know what? I think it's GOOD that we're playing nice with the Russians now.
What I'd LIKE to see, is the various national Pirate parties get their people out there to negotiate the next WIPO Copyright Treaty, and turn the term limits back down. I'd also like to see the US lower their terms down to current minimums in the meantime. But this case? I just can't work myself up over it. It's disappointing, but I can't say it's unequivocally disasterous; it's probably a fair price to pay.
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Just because something is stupid doesn't mean it's unconstitutional.
The supreme court only gets to decide constitutionality, not stupidity. Don't complain to the supreme court, complain to congress.
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If the supreme court wrongfully interprets a law then I have good reason to complain to them.
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Disney's probably pissed that they now have to pay Kipling for Jungle Book and Edgar Rice Burroughs for Tarzan and John Carter!
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Funny you should mention Edgar Rice Burroughs his estate part of the new and exciting field of using trademark on fictional characters from books in the public domain to collect licensing fees from derivative works that feature them. Including Tarzan and John Carter.
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Re:
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Resist
I am all for a strongly-enforced copyright regime which is geared towards maximizing both the creation and distribution of new works. But if forced into a binary choice between the current system and no copyright at all (and we ARE being forced into that choice by Congress and the Courts), then I will reluctantly have to side with the no copyright forces. As radical as it is, its still less radical than the status quo in terms of the goal of maximizing the distribution of new works.
When combined with the SOPA outrage, this should be a Boston Tea Party moment (the 18th Century one - not the current incarnation). This should not be civil disobedience where we willingly offer up ourselves for punishment to make a point, but just actual disobedience where we put the onus on the government to try and forge a response to copyright infringement on such a massive scale that they will be forced to either create a totalitarian police state which brands its own people as a nation of 'thieves' for the sake of Big Content corporations, or accept an objective reality which treats infringement the same way that Barney Fife treats automobile speeding in terms of its enforcement.
But in terms of productive copyright reform coming from either Congress or our legal system? I've given up. I'll let William Patry be the one to continue wasting his time living in that fantasy land.
If Shakespeare's true identity is ever conclusively established, what are we supposed to do now when his heirs come forward, bribe Congress to once again extend the length of protection and place his writings back under copyright, and then have people forced to pay royalties or prevent people from performing his works altogether? We certainly can't rely on the Supreme Court to protect us from the scenario now.
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Re: Resist
Anti-incumbent sentiment is at a historical high right now. Still, the districts are gerry-mandered. And almost half the population still self-identifies with partisan tribes.
It's hard to predict what kind of impact today's protest will have on the November elections.
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Re: Re: Resist
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Re: Resist
Encouraging piracy only leads to more laws being enacted which make life harder for everyone. You may feel liberated in your endeavor, but you are harming society as a whole.
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Re: Re: Resist
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My Thoughts on Copyright
My opinion is the lobbying for the next copyright extension will be started in 2015 and by 2019 at the very latest a law will be passed that will be said to harmonize US copyright with Mexico's. The term will be life plus 100 or 125 for pre-1976 and work for hire works.
Since a 20 year extension worked last time why not 30 this time?
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Re: My Thoughts on Copyright
Just so everyone know, this is what I guessing what will happen, not what I want to happen.
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Know your job
With the thinking of these asshats, slavery is only a simple majority vote away from being re-established. It would make more money for the corporations (and congress) and after all, slavery (as wrong and immoral as it is) was acceptable when the constitution was written wasnt it? No, I am not pro slavery. That is an extreme example to illustrate the lack of itelligence in our government!!!!
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This part of the opinion is ghastly
see Brief for Motion Picture Association of America as Amicus Curiae 27 (observing that income from existing works can finance the creation and publication of new works); Eldred, 537 U. S., at 208, n. 15 (noting that Noah Webster �supported his entire family from the earnings on his speller and grammar during the twenty years he took to complete his dictionary� (internal quotation marks omitted)).
This strikes at the idea that copyright is purely an incentive to create new works. Instead Ginsburg agreed that it can be a used to milk more funds from old works, in the hopes that those funds will help sponsor new works.
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Re: This part of the opinion is ghastly
"Property" interpretation (French interpretation) rather than "monopoly" interpretion (English interpretation).
Wheaton v Peters (1835) is undermined.
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Re: Dissemination - Copyright vs public domain
Our decisions correspondingly recognize that �copyright supplies the economic incentive to create and disseminate ideas.�...Considered against this backdrop, �514 falls comfortably within Congress� authority under the Copyright Clause. Congress rationally could have concluded that adherence to Berne �promotes the diffusion of knowledge,� Brief for Petitioners 4. A well-functioning international copyright system would likely encourage the dissemination of existing and future works.
Since when, in the history of the world, has strengthening copyright ever promoted dissemination of ideas. Putting works in the public domain has always spread things faster than keeping things copyrighted.
In fact ... maybe this could be used to further the orphan work cause. Those who publish or build on abandoned software, books, etc. are clearly disseminating work that would otherwise get zero dissemination.
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Re:On the good side
1) Fair use
2) Idea/Expression dichotomy
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Re: Re:On the good side
Note, somewhat curiously that those "contours" began in American law with Folsom v Marsh(*) and Baker v Selden, and only later were codified in statute. Codified�Ossified.
�
(*)Folsom v Marsh, of course, is tricky
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RE
Thomas Jefferson
the time is Passed, but it should Never be forgotten, the Tree of liberty is currently severely dehydrated.
I'm ready to water that tree, when are YOU going to be ready?
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Dawn
I would not be too sad about this. The World is always at its darkest before the dawn breaks. Then the World is certainly changing and what is best for the public will no longer be ignored next to what makes the most profit.
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breaking news
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Re: breaking news
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Internet, do your thing.
https://en.wikiquote.org/wiki/John_Gilmore
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I mean the removal of public works from the public... is entirely against the public benefit. a negative in every way to me who wants to create new work.
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Oh it's nice to see we're being honest
I don't see how this is any different than contorting copyright law into granting someone a monopoly on commercial piracy. On the other hand, if the two are differentiable today, I can't imagine I'll remain mistaken for long. I'm not sure how doing something wrong justifies doing something wrong again. Then again, this kind of shit flies all the time.
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Unless it's actually unconstitutional, but this piece didn't really effectively argue that, in my opinion. If Congress needed to give some public domain works copyright protection in order to ensure that US works were protected abroad, that seems the seems the sort of trade-off Congress is there to make.
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The post about the Geneva Convention is ignorant. Read it, and none of what is happening violates it. It's very specific in it's definitions and who it applies to.
Copyright is there to make a financial gain for writers, who otherwise might not write, composers who might not make music, plaulyroghts that might instead goose to be something useless mile lawyers.
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Correct me if I'm wrong.
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Re: Correct me if I'm wrong.
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