Supreme Court Chooses SOPA/PIPA Protest Day To Give A Giant Middle Finger To The Public Domain

from the ridiculous dept

Wed, Jan 18th 2012 1:26pm — Mike Masnick

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

118 Comments

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Jay (profile), 18 Jan 2012 @ 1:03pm

Article 1 Section 10
I would hope in the arguments, someone actually told the justices about a very important document of our Constitution. You see, the fact is, copyright has been becoming more of a penalty and everyone has failed to notice why copyright is becoming unconstitutional.

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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Anonymous Coward, 18 Jan 2012 @ 1:30pm

Re: Article 1 Section 10
I would hope in the arguments, someone actually told the justices...

Why does it matter any more?

The justices have SPOKEN. The decision is FINAL.
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E. Zachary Knight (profile), 18 Jan 2012 @ 1:34pm

Re: Re: Article 1 Section 10
The decision is not final. Congress can still step in and change the law. As long as the changes to the law are still inline with the Constitution, there would be no problem.
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Anonymous Coward, 18 Jan 2012 @ 1:39pm

Re: Re: Re: Article 1 Section 10
Congress can still step in and change the law.

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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gorehound (profile), 18 Jan 2012 @ 1:43pm

But this is the Court who allowed Corporations are People.Guess I should say what do you expect.
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Jeffrey Nonken (profile), 18 Jan 2012 @ 1:47pm

The Constitution and the Bill of Rights are now just toilet paper. Didn't you know?
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RonKaminsky (profile), 18 Jan 2012 @ 1:48pm

Re: Re: Article 1 Section 10
> Why does it matter any more?

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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:Lobo Santo (profile), 18 Jan 2012 @ 1:48pm

Re: Bloody Paper
Men fought and died for that toilet paper...
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Anonymous Coward, 18 Jan 2012 @ 1:53pm

Re: Re: Bloody Paper
Men fought and died for that toilet paper...

Spare us the dramatics.
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Anonymous Coward, 18 Jan 2012 @ 1:54pm

"While it's easy to blame this ruling on the Supreme Court"

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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:Lobo Santo (profile), 18 Jan 2012 @ 1:57pm

Re: Re: Re: Bloody Paper
I see you have trouble with word definitions.
Here ya go:

drama (usually uncountable; plural dramas or dramata) A composition, normally in prose, telling a story and intended to be represented by actors impersonating the characters and speaking the dialogue Such a work for television, radio or the cinema (usually one that is not a comedy) Theatrical plays in general A dramatic situation in real life (slang) Rumor, lying or exaggerated reaction to life events; melodrama; an angry dispute or scene; intrigue or spiteful interpersonal maneuvering.
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TheBigH (profile), 18 Jan 2012 @ 1:58pm

"Petitioners also urge that the Government's position would allow Congress to legislate perpetual copyright terms by instituting successive�limited� terms as prior terms expire. But as in Eldred, such hypothetical misbehavior is far afield from this case."

How can the Supreme Court say that with a straight face?
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Anonymous Coward, 18 Jan 2012 @ 1:58pm

Re: Re: Article 1 Section 10
The decision is FINAL.

The Internet has decided to overrule it.
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anonymous, 18 Jan 2012 @ 2:00pm

perhaps the next internet protest should be about putting the constitution back into copyright? i can imagine the response from the entertainment industries already!
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DH's Love Child (profile), 18 Jan 2012 @ 2:00pm

Re: Re: Re: Article 1 Section 10
Except that these symphony orchestras are there to perform FOR the public. If the well of material available to them keeps getting emptied, they will get less support from that public.

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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Anonymous Coward, 18 Jan 2012 @ 2:01pm

Re:
These copy protection extensions do nothing to promote the progress of the sciences and useful arts.

From Justice Ginsburg's opinion (for the court):

The creation of at least one new work, however, is not the sole way Congress may promote knowledge and learning. In Eldred, we rejected an argument nearly identical to the one petitioners rehearse. The Eldred petitioners urged that the �CTEA�s extension of existing copyrights categorically fails to �promote the Progress of Science,� . . . because it does not stimulate the creation of new works.� In response to this argument, we held that the Copyright Clause does not demand that each copyright provision, examined discretely, operate to induce new works. Rather, we explained, the Clause �empowers Congress to determine the intellectual property regimes that, overall, in that body�s judgment, will serve the ends of the Clause.� And those permissible ends, we held, extended beyond the creation of new works.

(Citations omitted.)
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The eejit (profile), 18 Jan 2012 @ 2:03pm

Re: Re: Re: Re: Article 1 Section 10
Except it's less lollercoaster and more lolocaust on the public domain.
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Anonymous Coward, 18 Jan 2012 @ 2:03pm

So I'm a bit confused by this. I'm reading the ruling and wondering if the headline takes things a little too far? The opinion seems to be talking about taking works out of the public domain to fulfill agreements from various treaties- specifically the Berne Convention, Article 7 where duration is discussed. For example, if I take Book X from France that is 100 years old and falls in public domain in the USA but is still under protection in France for another 15 years, that would take Book X out of US public domain for another 15 years.

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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Jay (profile), 18 Jan 2012 @ 2:16pm

Re: Re: Article 1 Section 10
The justices have SPOKEN. The decision is FINAL.

I suddenly feel like there's an objection to what you assert...
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vastrightwing, 18 Jan 2012 @ 2:25pm

Book burning
Back in the so called dark ages, we had book burning. Today�s modern equivalent is copyright. The correlation is like this: burning books was done to stop people from learning the truth. Today�s progress is to do the same thing using the government to make sure it and the others who control it can stop any information they want from getting out by controlling it with copyright. Sure, burning books is not the same thing, but the result is the same: keeping the masses ignorant so the powerful can continue to get away with whatever it wants.
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Anonymous Coward, 18 Jan 2012 @ 2:27pm

I'm shocked...I expected the slack jawed government lackeys� to give a ruling in favor of the public and not...OHHH wait �corporations rule long live the corporation.
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rubberpants, 18 Jan 2012 @ 2:27pm

Re: Re: Re: Bloody Paper
Spare us the trolling.
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:Lobo Santo (profile), 18 Jan 2012 @ 2:28pm

Re: Book burning
Yeah right, like burning a copy of "yodelling's greatest hits" or "my favorite coffee rings" ever really deprived anybody of more than a coffee-table decoration...
[/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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Samuel Abram (profile), 18 Jan 2012 @ 2:30pm

Breyer got it right
Breyer got it right. Copyright was once a utilitarian proposition. It was only when the US joined the Berne Convention that we turned copyright into a "moral obligation to support the natural rights of authors". He also correctly noted the dangers here:

[The high administrative costs that go with determining whether something is copyrighted] can prove counterproductive
in another way. They will tempt some potential users to �steal� or �pirate� works rather than do without. And piracy often begets piracy, breeding the destructive habit of taking copyrighted works without paying for them, even where payment is possible. Such habits ignore the critical role copyright plays in the creation of new works, while reflecting a false belief that new creation appears by magic without thought or hope of compensation.
.

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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Anonymous Coward, 18 Jan 2012 @ 2:30pm

Re: Re:
So the court is claiming that Congress is the ultimate authority over what promotes the progress. Even though retroactive extensions don't create any new works, their overall effect somehow creates new works through some magic mechanism since Congress says so.

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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Anonymous Coward, 18 Jan 2012 @ 2:32pm

That is exactly why any reasonable person that takes its time to look at copyright and how it impacts his life should be claiming to end that monopoly.
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Anonymous Coward, 18 Jan 2012 @ 2:33pm

Re: Re: Book burning
"I'm going to use that explanation"

But that would be infringement!
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Anonymous Coward, 18 Jan 2012 @ 2:34pm

Re: Re:
Translation:

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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Samuel Abram (profile), 18 Jan 2012 @ 2:34pm

Re: Re: Re: Article 1 Section 10
Thanks for the lulz.
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Anonymous Coward, 18 Jan 2012 @ 2:37pm

Re: Re: Article 1 Section 10
Nothing is final in society only death.
Everything else can and probably will be changed with time.
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Anonymous Coward, 18 Jan 2012 @ 2:37pm

Re: Re: Re: Article 1 Section 10
I suddenly feel like there's an objection to what you assert.

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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Anonymous Coward, 18 Jan 2012 @ 2:38pm

That is exactly why any reasonable person that takes its time to look at copyright and how it impacts his life should be claiming to end that monopoly.
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Anonymous Coward, 18 Jan 2012 @ 2:42pm

Re: Breyer got it right
Breyer got it right.

Breyer got out-voted: 6-2.

Copyright was once a utilitarian proposition.

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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DogBreath, 18 Jan 2012 @ 2:44pm

Re:
"Petitioners also urge that the Government's position would allow Congress to legislate perpetual copyright terms by instituting successive�limited� terms as prior terms expire. But as in Eldred, such hypothetical misbehavior is far afield from this case."

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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Anonymous Coward, 18 Jan 2012 @ 2:45pm

Re: Re: Re:
There is no way around it, the courts made an unconstitutional decision.

Unconstitutional according to whom? Some anonymous guy on the internet?
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Samuel Abram (profile), 18 Jan 2012 @ 2:46pm

Re: Re: Breyer got it right
Breyer got out-voted: 6-2.

I am depressedly aware of that.
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A Guy (profile), 18 Jan 2012 @ 2:50pm

Re:
The point of the headline is that this ruling gives congress the power to put Romeo and Juliet back into copyright anytime it chooses. It makes a mockery of copyrights original intent.
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E. Zachary Knight (profile), 18 Jan 2012 @ 2:52pm

Re:
Your description of the issue at hand directly conflicts with your problem of it.

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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Anonymous Coward, 18 Jan 2012 @ 2:52pm

This clearly shows that the court observes that not only does copyright law not violate first amendment, extension of those protections to coincide with copyright protections in other countries is lawful under the terms and amendments of the constitution. In other words, if you want to challenge copyright law it will require a constitutional amendment. This should quash further attempts to challenge the extension of copyright laws for many years to come. I am surprised they agreed to hear the case given the 6 to 2 decision.
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Dale Sheldon-Hess, 18 Jan 2012 @ 2:55pm

I can't believe I'm going to say this, I've always been a huge anti-copyright-maximalism crusader... but.

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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Anonymous Coward, 18 Jan 2012 @ 2:55pm

Re: Re: Article 1 Section 10
Why does it matter any more?
The justices have SPOKEN. The decision is FINAL.

Hasn't the Supreme Court reversed itself on a number of occasions?
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Anonymous Coward, 18 Jan 2012 @ 2:56pm

Re: Re:
It makes a mockery of copyrights original intent.

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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Anonymous Coward, 18 Jan 2012 @ 2:59pm

Re: Re: Re: Article 1 Section 10
Hasn't the Supreme Court reversed itself...?

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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Dale Sheldon-Hess, 18 Jan 2012 @ 2:59pm

Re:
Shorter me:

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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X, 18 Jan 2012 @ 3:00pm

Perhaps it's time the American people gave a giant middle finger to the black-robed devils.
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Anonymous Coward, 18 Jan 2012 @ 3:01pm

Re:
"...it's probably a fair price to pay."

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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Justin Levine, 18 Jan 2012 @ 3:04pm

Resist
This decision has me so mad and depressed that I'm beginning to wonder if we should even bother continuing to hit our head against the wall with Congress and the Courts and just concentrate on nurturing cultural black-market ecosystems which are designed to ignore the law, make end runs around it and subvert copyright altogether.

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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Shadow-Slider, 18 Jan 2012 @ 3:07pm

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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Shadow-Slider, 18 Jan 2012 @ 3:12pm

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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Anonymous Coward, 18 Jan 2012 @ 3:12pm

Re: Re: Re: Re:
According to the constitution.

Who I am is irrelevant, the arguments I make are relevant.
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Anonymous Coward, 18 Jan 2012 @ 3:13pm

Re: Resist
I'm beginning to wonder if we should even bother continuing to hit our head against the wall with Congress

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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Anonymous Coward, 18 Jan 2012 @ 3:13pm

Re: Re: Re:
I agree, the original intent of copy protection laws were nefarious in nature. Lets just abolish these laws.
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Anonymous Coward, 18 Jan 2012 @ 3:16pm

Re: Re:
"Don't complain to the supreme court, complain to congress."

If the supreme court wrongfully interprets a law then I have good reason to complain to them.
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Anonymous Coward, 18 Jan 2012 @ 3:18pm

Re: Re: Breyer got it right
"signifies a victory for the "property" foundation for copyright."

Perhaps this is partly what we are protesting.
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Anonymous Coward, 18 Jan 2012 @ 3:24pm

Re: Re: Re: Breyer got it right
Perhaps this is partly what we are protesting.

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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Anonymous Coward, 18 Jan 2012 @ 3:25pm

Re: Re: Re: Re:
"Some anonymous guy on the internet?"

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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Anonymous Coward, 18 Jan 2012 @ 3:28pm

Re: Re: Re: Re: Breyer got it right
I agree, a lot more needs to be done to educate the general public.
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Anonymous Coward, 18 Jan 2012 @ 3:28pm

Re: Re: Re: Re: Re: Breyer got it right
(or to inform them rather *)
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Anonymous Anonymous Coward, 18 Jan 2012 @ 3:30pm

Re: Re:
Seems strange to me that they take international treaties so seriously. I mean, we no longer follow the Geneva Convention, so why should we follow any others?
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AR (profile), 18 Jan 2012 @ 3:38pm

Know your job
The problem is not that these 6 morons dont understand copyright law. Its that these 6 morons dont understand their fricking jobs!!! They are not there to say If congress wants it to be that way, it must be ok. Their job is to say when the legislative branch and the judicial branch have overstepped their mandates and passed or enforced laws that are inconsistent with existing parts of the constitution. Within the perimeters of life, liberty, and the pursuit of happiness of the general public, but with protections for the individual (minority) from the will of the majority.

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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Anonymous Coward, 18 Jan 2012 @ 3:42pm

Re: Re: Re: Re: Re:
No, but I do have an opinion and there is nothing wrong with voicing it.

Do you want to be like Humpty Dumpty?

'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean � neither more nor less.'

'The question is,' said Alice, 'whether you can make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master � that's all.'

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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Anonymous Coward, 18 Jan 2012 @ 3:42pm

This part of the opinion is ghastly
I don't like that they found this persuasive:

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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Samuel Abram (profile), 18 Jan 2012 @ 3:47pm

Re: Re: Re: Re:
I hope you were being sarcastic, because "promoting the progress of useful arts and scientists" seems utilitarian to me, not nefarious. Limited copyrights, as long as they're limited, seems to be a fair and utilitarian solution. Copyright Forever is indeed nefarious, however, and was far from the intent of why copyright was included in our constitution.
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Anonymous Coward, 18 Jan 2012 @ 3:48pm

How do we get the Grimm brothers copyright back and end Disney?
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Anonymous Coward, 18 Jan 2012 @ 3:49pm

Re: This part of the opinion is ghastly
Instead Ginsburg agreed that it can be a used to milk more funds from old works

"Property" interpretation (French interpretation) rather than "monopoly" interpretion (English interpretation).

Wheaton v Peters (1835) is undermined.
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Samuel Abram (profile), 18 Jan 2012 @ 3:50pm

A Nota Bene:
I said:

copyright was included in our constitution.

I should have said:

the power to enable congress to establish copyright (for limited times)

An important difference. My apologies.
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Anonymous Coward, 18 Jan 2012 @ 3:52pm

Re: Dissemination - Copyright vs public domain
Blech:

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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Shadow-Slider, 18 Jan 2012 @ 3:54pm

Re: Re:

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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Anonymous Coward, 18 Jan 2012 @ 3:54pm

Re: Re: Re: Re: Re:
Copyright Forever is indeed nefarious

"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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Digitari, 18 Jan 2012 @ 3:56pm

RE
The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.
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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Anonymous Coward, 18 Jan 2012 @ 3:59pm

Re:On the good side
The opinion actually enumerated a couple of the 'traditional contours' of copyright that Congress can't cross without messing with first amendment:

1) Fair use
2) Idea/Expression dichotomy
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Anonymous Coward, 18 Jan 2012 @ 4:00pm

Re: Re:
No, it most certainly does not. To understand this, however, one has to read the statute and understand that it only applies to certain works that are still under copyright in their country of origin.
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Violated (profile), 18 Jan 2012 @ 4:12pm

Dawn
Well this is sure a disappointment. The Public Domain gets raped and the rapist's name is "copyright". This only goes to prove my point that the Public Domain is only treated like left-over trash next to copyright.

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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Anonymous Coward, 18 Jan 2012 @ 4:15pm

Re: Re:On the good side
The opinion actually enumerated a couple of the 'traditional contours' of copyright that Congress can't cross

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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Richard (profile), 18 Jan 2012 @ 4:18pm

Re: Re: Re: Re: Re:
"promoting the progress of useful arts and scientists" seems utilitarian to me, not nefarious.

Unfortunately "promoting the progress" was never the intent - it was only the excuse.
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A Guy (profile), 18 Jan 2012 @ 4:22pm

Re: Re: Re:
It seems to me that this allows copyright length to be retroactively changed by treaty. If it can be changed by treaty, then it can be changed by any other legislative process.

That seems like a blank check to put works into perpetual copyright to me.
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Richard (profile), 18 Jan 2012 @ 4:25pm

Re: Re: Breyer got it right
Ginsburg's opinion, despite the rhetoric, despite any obiter dicta, signifies a victory for the "property" foundation for copyright.

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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Samuel Abram (profile), 18 Jan 2012 @ 4:29pm

Re: Re: Re: Re: Re: Re:
Unfortunately "promoting the progress" was never the intent - it was only the excuse.

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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Richard (profile), 18 Jan 2012 @ 4:31pm

Re: Re: Re:
it only applies to certain works that are still under copyright in their country of origin.

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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bob saget, 18 Jan 2012 @ 4:34pm

this is wrong in so many ways we need to stand up there pretty much sayin that we are all dumbass this is so wrong and treatin you country like this u should get fired from congress.
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some dude, 18 Jan 2012 @ 4:35pm

breaking news
there are no rights in america anymore.its just a matter of time . the united states is in martial law. get out while you can
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Anonymous Coward, 18 Jan 2012 @ 4:39pm

See, and this? This is actually stealing. As in, we had something and now it's gone.
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Anonymous Coward, 18 Jan 2012 @ 4:40pm

Re: Re: Re: Re: Article 1 Section 10
I love how you're trying to pretend that half a dozen co-sponsors of the bills dropping their support today is indicative of a protest that petered out with no real impact.
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Anonymous Coward, 18 Jan 2012 @ 4:42pm

Re: Re: Re: Article 1 Section 10
Abolishing copyright would be inline with the Constitution and retroactively removing it from all existing works would be inline with today's SCOTUS ruling. Just sayin'...
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Anonymous Coward, 18 Jan 2012 @ 4:44pm

Re: Re: Re: Re: Re: Re: Re:
Yeah, but that was based on the needs of artists. Corporations have different needs.
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Anonymous Coward, 18 Jan 2012 @ 4:46pm

Re: Re: Re: Re: Re: Re:
Most of your fellow citizens would notice you didn't address any arguments made and just called him names like 'sad, pathetic Humpty Dumpty.'
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Froot Loops, 18 Jan 2012 @ 4:49pm

Re: breaking news
indeed. I'm moving to Ecuador when I turn 18. It may be a third-world country but it's got a stable economy and more rights than the goddamn US.
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Anonymous Coward, 18 Jan 2012 @ 4:56pm

Re: Re: Resist
Today's protest did absolutely nothing to abolish the two ruling parties oligopoly on political power so I would guess the real world impact of today's protest on the November elections will be zero. We might get another swing from one party to another in the same old song and dance we've seen for years now where we pretend we have political agency when things change in name only.
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Anonymous Coward, 18 Jan 2012 @ 5:06pm

Re: Article 1 Section 10
Article 1, Section 10 has nothing to do with the federal government. It pertains only to states.

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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Anonymous Coward, 18 Jan 2012 @ 5:11pm

Re:
Because the court does not deal in hypotheticals. What a Congress might do in the future is not known, and the court is rightly loathe to prognosticate what Congress might or might not do.
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Channelling John Gilmore, 18 Jan 2012 @ 5:45pm

Internet, do your thing.
The Net interprets [copyright law] as damage and routes around it.

https://en.wikiquote.org/wiki/John_Gilmore
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Anonymous Coward, 18 Jan 2012 @ 5:50pm

Re: Re: Article 1 Section 10
In any event, the Ex Post Facto clause has been nearly entirely gutted anyway. Thanks to all the stupid crap rammed and rushed through in the guise of protecting the public from "sex offenders," retroactive laws -- including imprisonment on speculation that you might commit a crime -- now rarely violate the Constitution as long as a legislature calls it a "civil remedy" and not "punishment."

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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Samuel Abram (profile), 18 Jan 2012 @ 5:51pm

Re: Re: Re: Re: Re: Re: Re: Re:
Yeah, but that was based on the needs of artists. Corporations have different needs.

Excellent point. That's why we have to make congress dependent on the people, and not the funders.
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Anonymous Coward, 18 Jan 2012 @ 5:57pm

Re:
This decision has absolutely nothing to do with corporations other than the fact that some may hold rights to some of the foreign works effected by the law.
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Anonymous Coward, 18 Jan 2012 @ 6:32pm

Re: Re: Article 1 Section 10
It's funny, when they speak in regards to this one matter, you say they have spoken and that the decision is final.

When the justices have previously pointed out that copying is NOT stealing, you ignore their FINAL SPOKEN decision.

Hypocrite much?
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Anonymous Coward, 18 Jan 2012 @ 7:00pm

Re:
Why would it take a constitutional amendment? It certainly wouldn't to abolish copyright altogether. Remember that the Constitution only gives congress the power to enact copyright. It does not do so, itself.
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zipperation, 18 Jan 2012 @ 7:25pm

is there a way to impeach a supreme court justice?

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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Al Bert (profile), 18 Jan 2012 @ 8:20pm

Oh it's nice to see we're being honest
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.

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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Anonymous Coward, 18 Jan 2012 @ 9:35pm

Re: Re: Re: Re:
I have never heard of the "rule" you reference (a citation would help), but the basic rule I have laid out is at the heart of the law. Copyright "recapture" is limited to only those works that remain under copyright in their countries of origin.
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Anonymous Coward, 18 Jan 2012 @ 9:51pm

Re: Re: Re: Re: Re: Re:
"Most attorneys will disagree with you. And most of your fellow citizens will look at you like you're a sad, pathetic Humpty Dumpty."

[citation needed]
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Anonymous Coward, 18 Jan 2012 @ 10:24pm

Re: Re: Re: Re: Re:
By original I meant before that.
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Anonymous Coward, 18 Jan 2012 @ 10:26pm

Re: Re: Re:
The people/judges who will be interpreting these rules could very well be the same people that manage to interpret the Constitution to mean that copy protection lengths can continuously get extended and that it can get retroactively extended and somehow this doesn't violate the constitution's limited time or promote the progress clause.
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Anonymous Coward, 18 Jan 2012 @ 10:41pm

Unfortunately, the Supreme Court is not there to overturn a law just because it's incredibly stupid. Congress, alas, is not enjoined from making laws that are simply idiotic, as current copyright law certainly seems to me to be.

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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Anonymous Coward, 18 Jan 2012 @ 11:20pm

Kahle? It was denied cert
Interesting troll style. It took me a while to find the glib error in the second paragraph --- Kahle vs. Gonzales was denied cert by SCOTUS.

You are, however, depressingly right, that any kind of copyright reform isn't going to come from that direction.
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btrussell (profile), 19 Jan 2012 @ 2:17am

Re: Re: Re: Re: Re: Re: Breyer got it right
Start by showing them the cost of education and how much of that goes to paying for copyright.

It is part of the reason taxes on real property are so high. To pay for imaginary property.
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Anonymous Coward, 19 Jan 2012 @ 3:59am

Re: Kahle? It was denied cert
Interesting troll style.

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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chris, 19 Jan 2012 @ 6:49am

Re: Re: Re: Article 1 Section 10
Right, and I think that's why the court had to rule the way they did. They cannot simply overrule congress and make decisions about policy. Perhaps if a law did not mention any time frame, something that would violate the constitution. Unfortunately, the constitution is very vague when it comes to copyright which gives a lot of discretion to congress.
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Anonymous Coward, 19 Jan 2012 @ 8:25am

Re: Re: Re:
The supreme court didn't wrongfully interpret the law. The treaty was intended to put our observation of copyrights issued in foreign lands in sync with the other country's copyright expiration. The court made the ONLY decision it could make. I still question why they even agreed to hear the case.
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Anonymous Coward, 19 Jan 2012 @ 8:29am

Re:
Perhaps it's time for you to respect the Constitution and come to the realization that the justices made the correct decision. If you want to change the length of copyrights on domestic works, contact your legislators, the SCOTUS has no power to write laws. Just because a decision doesn't come out on your side of the issue does not mean that it was a bad decision.
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Anonymous Coward, 19 Jan 2012 @ 8:38am

Re: Resist
Nurturing black market ecosystems will only provide fodder for copyright maximalist to use in their endeavor to further increase copyright terms. I other words, suck it up, and purchase your content. If the content creators can't point to evidence of piracy as a reason for lost revenue congress will have no reason to grant extended copyright terms.

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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btrussell (profile), 19 Jan 2012 @ 9:47am

Re: Re: Resist
BS. They will always have a mickey mouse excuse.
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btr1701 (profile), 19 Jan 2012 @ 11:18am

Re: Re: Re: Re: Article 1 Section 10
> They cannot simply overrule congress and make decisions about policy.

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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Chess, 19 Jan 2012 @ 12:14pm

Retroactively applies laws already have precedent. The Lautenberg Ammendment for instance.

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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Anonymous Coward, 19 Jan 2012 @ 12:28pm

Re: Re: Re: Re: Re: Article 1 Section 10

....simply overrule congress and make decisions about policy.
...hardly an abuse of judicial power.

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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RonKaminsky (profile), 21 Jan 2012 @ 1:23am

Re: Re: Kahle? It was denied cert
I guess this means that Alex Kozinski is the ideal appointee for the next open seat, then?

(A non-maximalist is allowed to dream, no?)
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Damian, 23 Jan 2012 @ 12:26pm

Correct me if I'm wrong.
First I need to say that I understand the arguement and part of me wants to agree. Normally I am all for abolishing or taking a long hard step back on copyright. However I have to disagree in this particular case. Our laws give us no rights to foreign works. These things become public works here by their good graces. The flip side is they don't have to share them with us at all. It is imperative that we adhere to their laws in this case. If their copyrights are too long then that is a fight for their citizens. We may be moving towards a smaller world than before, but this is not the world of America. We are not citizens there and have no rights to argue it. If we wish to remain in this ever shrinking world we cannot continue to piss everyone off.
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allyssa lucuch, 27 Mar 2012 @ 10:35am

Re: Re: Re: Article 1 Section 10
how could you not fkn think this does not matter THIS IS MY FACEBOOK
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davidbarcomb, 1 Dec 2014 @ 4:35pm

Re: Correct me if I'm wrong.
You got it right
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