Golan Appealed To The Supreme Court; Important Case About The Extent Of Copyright & The Public Domain

from the would-be-nice... dept

We've been covering the Golan case for a while now. It's an important case in determining the contours of copyright and the public domain. Many details of the case involve a lot of legal specifics, but the general point was to question whether or not taking works out of the public domain, and putting them under copyright violated the First Amendment. Now, there's a lot more to it than that, and it would take way too much time to get into all the details. But, basically, due to a trade agreement, certain works that had been considered in the public domain in the US, were put back under copyright. Whether or not that, alone, is that big of a deal wasn't the key point. Realistically, the point of the case was to get a court to finally admit that there were ways in which Congress could change copyright law that violated the First Amendment.

This had been the key point raised in the famed Eldred case, in which the Supreme Court concluded that copyright extension to keep works out of the public domain did not violate the First Amendment basically because Congress said so (again, for the angry lawyers, I am simplifying to keep this short). However, the court did leave a tiny opening, by saying that if Congress "altered the traditional contours of copyright protection," then it could require First Amendment scrutiny. Of course, to some of us, the fact that copyright now automatically covers all sorts of new works immediately upon creation -- and that it lasts the author's life plus another 70 years, as compared to original copyright laws, which only covered a small sub-section of content, required registration for coverage and only lasted 14 years (with the ability to renew for another 14) -- certainly seems like Congress altering the traditional contours of copyright protection, but what do we know?

So, here's where the Golan case got interesting. It's bounced back and forth a few times between the district court and the appeals court. In 2007, the appeals court went through a long (and, admittedly, tortured) explanation for how taking works out of the public domain certainly could "alter the traditional contours of copyright protection," sending the case back to the lower court to consider whether or not this potential contour violation could be a First amendment problem. It took some time, but early last year, the court said that, yes, this move did appear to violate the First Amendment. But... earlier this year, the appeals court reversed the lower court's ruling (despite it sending it back to the district court in the first place), saying that the government had plenty of good reasons to pull works from the pubic domain, and thus, there was no First Amendment violation. In some ways, it appeared to suggest that so long as there was a "substantial or important government interest," the First Amendment issue was a non-starter (which seems to go against the very concept of the First Amendment).

So.... why is this all important? Well, one of the problems with the Eldred ruling is that no one knows what within Congressional changes to copyright law actually does "alter the contours," and too many lawyers seem to believe that the Eldred ruling means that whatever Congress wants to do to copyright laws is okay. Having a precedent that shows that, no, some of these changes really do alter the contours and that, yes, this is a First Amendment violation, can hopefully create at least some sort of standard by which the courts actually look at copyright law changes to see if they violate the First Amendment, rather than just saying "if Congress did it, it's okay."

While it's no surprise, then, it is worth noting that the case has officially been appealed to the Supreme Court. As Anthony Falzone (who's heavily involved in the case) notes:

In our view, these questions could not be more important. The point of copyright protection is to encourage people to create things that will ultimately belong to the public. While the scope and duration of copyright protection has changed over time, one aspect of the copyright system has remained consistent: once a work is placed in the Public Domain, it belongs to the public, and remains the property of the public -- free for anyone to use for any purpose. That principle was respected for more than 200 years, because it represents a critical limit on the intellectual property "monopoly" the Framers authorized. By restoring copyrights in tens of thousands of works that had been in the Public Domain for decades, the URAA represents a radical departure from these basic principles, and it affects a broad array of critically important public speech rights. The Tenth Circuit's decisions in this case suppress those rights, and threaten the integrity of the Public Domain itself.

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

Isn't It Unfortunate That We Need A Special Mark To Indicate Works That Are Already In The Public Domain?

from the creatively-common dept

In the past, we had complained that, with Creative Commons licenses, you still had to put some restrictions on the usage. At the time, the least restrictive still required attribution, which wasn't the same as ridding yourself of copyright. Thankfully, about a year and a half ago, CC introduced the CC0 license, which was a dedication of the work to the public domain, for those who wanted no restrictions at all on their works. This week, Creative Commons has also launched a "public domain mark" which differs from CC0 in that the new mark is for indicating existing works that are already in the public domain around the world. Thus, a site that collects works from centuries ago, or whatever, can indicate to people that they're in the public domain by using such a mark. So the main difference is that CC0 is about putting works in the public domain, and the public domain mark is about indicating existing works that are already in the public domain.

While I'm always happy to see more ways to educate people about the public domain, it is a little sad, when you think about it, that this is needed at all. The fact that we need to proactively tell people what works are in the public domain suggests how many people don't realize -- or even resist the idea -- that many, many works are in the public domain today and are free to make use of in any way. It's an unfortunate statement of our time that we have to proactively designate what's in the public domain. The public domain is supposed to be the rule, with copyright the exception... but the fact that we need such a mark shows how far to the other extreme we've gone.

Filed Under: creative commons, public domain

Candidate Sued By Fox Notes That Much Of The Content Is Public Domain

from the keystone-copyright-cops dept

We recently wrote about News Corp.'s slightly odd decision to sue a political candidate, Robin Carnahan, who used a clip from Fox News (of Chris Wallace attacking Carnhan's opponent, Roy Blunt). Carnahan has hit back, and beyond just arguing the obvious fair use defense (which seems like it should win), Carnahan points out that, first, Fox failed to register the copyright on the 2006 program until after it filed the lawsuit. As has been discussed here many times, while you get copyright automatically, if you want to sue over it, you generally have to have registered the copyright (the law is a little hazy here). Even worse, Carnahan's lawyers point out that a large segment of the clip that was used actually comes from C-SPAN, whose works are automatically put into the public domain. In other words, Carnahan's lawyers appear to be accusing Fox of copyfraud, in claiming copyright over public domain materials. If this gets anywhere, Fox and News Corp. may end up regretting filing this lawsuit quite a bit...

Filed Under: copyright, fair use, fox, public domain, robin carnahan, roy blunt
Companies: news corp.

Denying The Public Domain Has A Very Real Cost

from the which-should-not-be-ignored dept

One of the problems with copyright extension is that there's rarely anyone to take up the public's side of the argument. After all, in theory, copyright is supposed to be a bargain between the public and content creators, where the creators get a limited monopoly, and the public gets more content added to the public domain in the long run (increasingly getting longer). But, when it comes time for copyright extension debates, the only people heard from tend to be the content creators. The main assumption is often that there's no "cost" to keeping works protected by copyright. In fact politicians have, at times, even argued that copyright doesn't have an impact on price of works, as they argued in favor of copyright extension.

Rufus Pollock has now released two new studies on the size and value of the public domain in the EU, which shows that this argument is false. The public domain creates plenty of value and extending copyright does have a very real cost. It's not easy to calculate the specific cost, because the data necessary is not always available, but in areas where Pollock and his collaborators were able to get the necessary data, they showed that there's clearly value created by the public domain -- and we should not ignore that in copyright debates. Separately, the paper on valuing the public domain seems like an excellent one for use in the future in setting up a clear methodology for calculating "value" (as opposed to price) for works under copyright vs. the public domain. Most of the paper is really about the methodology of trying to figure out something that is not easily calculated (value).

Filed Under: copyright, public domain

UK Gov't Frees Up Gov't Works Under 'Open' License

from the good-to-see dept

While about the only good change to copyright law we've seen in the past century or so was the US's decision to make all federally created documents go straight into the public domain, rather than be covered by copyright, many other governments have not been nearly so enlightened. It's common -- especially in countries formerly in the British empire -- to have the concept of "crown copyright," covering government documents. Of course, this makes very little sense, since the purpose of copyright is supposed to be to offer incentives for the creation of the content, and most of the content governments produce will have other, external, incentives.

So it's nice to see (via Glyn Moody) that the UK government has taken a big step forward in declaring that government information should be released under an "open" license. In this case, it's set up the UK Open Government Licence (OGL), which isn't quite the same as the public domain, but it does seem pretty open. They're pretty clear when it comes to government data:

It is UK Government policy to support the re-use of its information by making it available for re-use under simple licensing terms. As part of this policy most public sector information should be made available for re-use at the marginal cost of production. In effect, this means at zero cost for the re-user, especially where the information is published online. This maximises the social and economic value of the information. The Open Government Licence should be the default licence adopted where information is made available for re-use free of charge.

It's nice to see them recognize that free and open data maximizes both social and economic value for the information. That's been shown over and over again -- particularly when it comes to government data (pdf) that freeing it up leads to greater economic value across the board. Hopefully other governments will start to move away from economically devaluing positions, such as by focusing on concepts like "crown copyright."

Filed Under: copyright, crown copyright, open license, public domain, uk

Cocoa Genome Released... But Is It Really In The Public Domain?

from the the-public-domain-has-no-restrictions dept

Last week, a PR person working for Mars (makers of M&Ms and such) sent me an email about how scientists from Mars along with the USDA and IBM (among others) had sequenced the cacao genome and that "the results of the research will be made available to the public with permanent access," at the accurately named Cacao Genome Database. Sounded interesting, but it was a busy week, and I wasn't able to spend much time digging into it. I was intrigued, however, by the claim in the press release that the team had "released the preliminary findings of their breakthrough cacao genome sequence and made it available in the public domain". It's so rare to hear of some big companies doing research and release it into the public domain, that it, alone, seemed newsworthy, and something I wanted to explore.

Thankfully, before I even got the chance to, I saw Glyn Moody point me to Glen Newton's analysis of the claims of public domain and open access for the data, only to discover it's not true. While they are making the data available, it's hardly public domain. You have to agree to a license that has some serious restrictions in it (and some contradictions). For example, it lists out the ways you can use it -- and leaves out commercial use. Real public domain doesn't care (and doesn't require a license).

Then there's this:

The User shall not transfer the information referred to in this agreement, or any copy of them, to a third party without obtaining written authorization from the Providers which will only be provided subject to the third party user entering into this same IAA.

I'm kind of wondering if this is just boilerplate that the lawyers threw into this not understanding what public domain means. But it seems pretty silly to (a) create a license for supposedly public domain data which (b) doesn't allow you to tell anyone about what's in the license!

There is a nice bit in the "license" where it says you can't use the data in a patent application, but one would hope that the data being in the public domain would exclude it from being used in a limited fashion elsewhere anyway (sans license agreement). Separately, someone in the comments notes that the original license agreement said that if you used the data, you couldn't publish any articles about your findings until some period in the future -- but that clause was later removed (though, it's unclear if those who signed in prior to the removal still need to live by that).

However, I do have a pretty serious question: is this data in the public domain? Last year, we pointed out how difficult it is to put something into the public domain. Here, we have a case where Mars, the main company behind the research, has put out a press release, which clearly states:

Today, Mars, Incorporated, the U.S. Department of Agriculture-Agricultural Research Service (USDA-ARS), and IBM released the preliminary findings of their breakthrough cacao genome sequence and made it available in the public domain.

Thus, one could easily read that and believe these findings are public domain. But, then, when you go to the actual site, it claims all sorts of license restrictions. So, if someone goes and copies all the data and puts it on their own site, is that legal? It certainly looks like the company put the info into the public domain via the press release, and once something is in the public domain, you can't reverse that (well, unless you're the 10th Circuit appeals court). So, it certainly looks like someone could make the argument that the license Mars is trying to put on this data is meaningless. The company has already declared it in the public domain, and thus, no license applies. But, here's where the lack of any clear rules for how you officially make something public domain come into play. Would Mars claim that the press release "misrepresented" the company's position?

I don't mean to come down too hard on Mars. It's actually quite nice that a company would do such research and try to make it "open" and try to prevent it from being locked up in patents. I really do commend such actions, and don't wish to negate that point. But, I think the public domain is a really important thing, and if a company wants to put content into the public domain, they should be clear about what's really in the public domain.

Filed Under: cocoa, genome, licenses, public domain
Companies: ibm, mars, usda

Google Asking For Help In Making Sure Public Domain Books Are Recognized As Public Domain

from the good-to-see dept

Recently, we wrote about how some book publishers appeared to be using public domain books from Google to make their own books (which is mostly fine), but then telling Google that its books were copyrighted, causing the full versions to disappear from Google -- which is not cool at all. Perhaps in response to this, apparently Google is now asking people in their forums to identify books within Google Books that are in the public domain, so that Google can investigate and see if they should be opened up as public domain books (found via Glyn Moody). I don't know if this is a direct response to those earlier complaints, but it's always nice to see a company not just respect the public domain, but do its best to make sure what belongs there is properly included.

Filed Under: books, copyright, public domain
Companies: google

How Much We're Missing From The Public Domain

from the the-public-domain-ain't-so-public dept

This one is from a few months back, but I think it's an interesting topic that deserves some discussion. Rufus Pollock decided to look at how many books would be in the public domain today if we'd either kept copyright law at its original 14 years (plus the possibility of a 14 year renewal) or if we had copyright set at 15 years flat (a number that a recent research project suggested was the optimal length for copyright (pdf). Not surprisingly, he found that a hell of a lot more works would be in the public domain.

Rather than 19% of all books being in the public domain -- as the situation is today -- we'd have 52% of books being in the public domain under the 14+14 scenario and 75% of works being in the public domain under the 15 yr copyright scenario. As he notes, that latter number is comparable to the percentage of works in the public domain in 1795, in the early days of copyright law in the US. This is important to note, because if you actually understand the history of copyright law, you would know that it's true purpose was to expand the public domain, and thus it seems worthy to look at how it may be doing the exact opposite of that. In the past century, copyright law in the US has only expanded -- with the single exception of recognizing that federal documents (mostly) don't deserve copyright. Nothing new has entered the public domain through copyright expiring in quite some time, and nothing new will do so for many years as well (and don't be surprised if we get another attempt at copyright extension soon...).

	Today	1795 (14+14)	Today (14+14)	Today (15y)
Total Items	3.46m	179k	3.46m	3.46m
No. Public Domain	657k	140k	1.2m	2.59m
%tage Public Domain	19	78	52	75

Now, there are a few problems with Pollock's back-of-the-envelope calculation here. The biggest is that it's using a bit of the fallacy of the pre-determined outcome in that it assumes that the number of works produced would remain constant, no matter what the copyright law. That seems unlikely. I would imagine that supporters of stronger copyright laws would argue that fewer books would be produced with weaker copyright laws, but I doubt they could muster up much evidence to support that. Since we've seen repeatedly that when you compare like situations where there is strong copyright and weak copyright, generally there's greater output with weak or no copyright, I think a strong case could be made for greater output, if copyright terms were much lower.

After all, authors would still want to write, and most would still get the same overall benefit -- since very, very, very, very few books have much of an economic life past their 15th year. In fact, if you look at the numbers back in the pre-1976 Copyright Act world, where copyright holders had to renew their works, when it came to books only 8% (according to Posner & Landes -- another study found the number closer to 11% -- still quite low) did so, suggesting that most authors got the monopoly rents out of copyright in the first few years. On top of that, it would enable people to build on works in the public domain, potentially inspiring interesting new and different works that aren't possible with works in copyright today. Either way, it's interesting to see how little of our culture's books are found in the public domain today.

Filed Under: copyright, public domain

Vandals' Bass Player Not A Fan Of The Public Domain, Thinks PD Recordings Will 'Destroy' Classical Music

from the is-this-a-joke? dept

We've covered how Vandals' bass player, Joe Escalante, a former entertainment industry lawyer, is currently in the middle of a legal fight with Reed Elsevier over a parody logo the band briefly used -- but has since stopped using. His discussions of the lawsuit have been interesting and informative, so I'm a bit shocked to see the following article, submitted by a bunch of folks where Escalante goes a bit off his rocker in attacking the public domain as "communism." Honestly, I had to read it a few times, and am still sort of wondering if this is pure satire. If it is, bravo. If it's not, Escalante may have taken cluelessness about the public domain to previously unheard of levels.

At issue? The story we recently covered of how the folks at Musopen wanted to raise money to hire an orchestra to record public domain symphonies, and release the recordings into the public domain. As you're hopefully aware, while such symphonies are in the public domain already, new recordings of those works are not. The composition is still public domain, but the recording gets a new copyright. Thus you really can't find public domain recordings of many of these works -- something which Musopen is helpfully looking to fix. That effort has been a massive success, with the group far surpassing its original goal of raising $11,000. In fact, Musopen has said that the more money they raise, the more songs they'll record and release into the public domain with the orchestra they hire. Who could possibly complain about that?

Escalante apparently.

Does this sound nice to you? If it does, you are forgetting one thing.You are forgetting that if these recordings have some commercial value it creates a market for them which not only employs musicians, it encourages better and better recordings and orchestrations that benefit all of society. Destroy their commercial value, and you destroy a lot more than you realize.

This makes absolutely no sense. Putting something into the public domain creates all sorts of additional commercial value in that it makes those works usable in all sorts of new and interesting ways. That's why we have the public domain after all. And, just because something is in the public domain, it doesn't "destroy" the value of the work. That's economically wrong, as has been shown over and over and over again. Allowing a work to hit is actual economic price, leads to a much greater economic efficiency, enabling all sorts of additional commercial opportunities. With the statements above, Escalante shows why he's a lawyer/bassist, not an economist.

Is it that offensive to these people that musicians should get paid for mastering their chosen instruments and making the sacrifices necessary to become a professional? Or is it crazy if someone gets a return on an investment to undertake the enormous task of recording a 100 plus person orchestra? Carried to it's logical conclusion, someday all classical recordings will be in the public domain so this faction of the recording industry can just shut down. Now you can tell your kids not to waste time learning the cello, because there's no way to earn anything from the sacrifice, so don't go to orchestra practice. It's a waste of time.

This is the paragraph that made me wonder if this is really pure satire. Escalante should go look up the history of the music industry. When player pianos first came out, the industry said that no one would ever go see live music again. When the radio came out, we heard the same thing. All through history, every time something new comes out, we're told that it will "destroy" the previous industry, but that's never happened. Making public domain recordings does absolutely nothing to remove the "return on investment" of an orchestra. Did Escalante really miss the fact that Musopen just raised a ton of money to pay this orchestra to make this recording? If he didn't get confused, then why is he claiming that this action to pay musicians is "offensive" to those who believe musicians should get paid? Furthermore, just because there's one public domain recording, there will be no market for orchestras? Seriously? This is the identical claim to the idea that player pianos would kill off musicians, because who'd ever need to see a live musician when they can just stick a piano roll in the player piano.

So we should let people make films and sell them and keep all the money instead of giving some to the musicians and encouraging their pursuit of these arts?

First of all, the musicians got paid. Why does Escalante keep ignoring this? It's like a giant mental block. On top of that, one of the important parts of the public domain is the fact that it allows others to build on previous works and create new sorts of works. Escalante seems wholly ignorant of the public domain. If someone sends me his address, I'll gladly send Escalante a free copy of Jamie Boyle's excellent book The Public Domain, so he can learn a bit about why the public domain is so important, and why it's a complete myth that it harms anyone.

Can you believe this? Why not hire sound alikes to record all the works of the Buena Vista Social Club so we can get around paying those suckers. We can avoid paying at least 1/2 of what we used to have to pay to license their works. They're seminal, why not? Esguerra actually calls this a "creative solution" to the problem of having to pay for the rights these musicians have obtained by sweat and talent. Does he also agree that waiting until midnight with a brick in your hand is a "creative solution" to the problem of having to pay for a plasma TV as well?

Again, I'm left wondering if Escalante is being satirical here. Just look at the video games Rock Band and Guitar Hero. For a while, both of them regularly used "sound-alike" recordings for bands that didn't want to license the originals -- and fans hated it. They wanted the originals. The claim that you could just hire a sound-alike and that's fine is provably false. People want the originals. It's already legal to record sound-alikes if you pay compulsory licenses, and it hasn't damaged anyone.

And please don't confuse this with the concept of "music should be free" because we're in a "new era," etc. It is nothing like that. My band The Vandals allow many unauthorized uploads on YouTube and other places as a measure of good will, we don't run around and bust infringers routinely. We get it, they listen, they might come to a show or push some kind of demand for us. Musopen is not a part of that movement, make no mistake. They are extremists trying to deprive honest working people of what they already earned to spite them for having the audacity to charge for their services.

Seriously? Putting public domain music into the public domain is "extremist" and "deprives honest hard working people" of what they've earned? Someone seriously needs a massive history lesson on the public domain.

The EFF calls for "music lovers" to support them with their wallets. This isn't for music lovers, it's for music killers. I actually used to have respect for EFF. I thought they were an important part of the debate but this is off the deep end.

Supporting the public domain is killing music and "off the deep end"? No, Joe. Telling people that supporting a larger public domain is what's off the deep end. The public domain is where great creativity and great creative works come from. It's the endless fountain of resources that people can pull from to do amazing new things. I actually used to have respect for Escalante for his fight with Reed Elsevier. I thought he was an important part of the debate, but this is off the deep end.

Filed Under: classical music, joe escalante, public domain
Companies: musopen

Using Google Books To Remove Access To Public Domain Books

from the that's-evil dept

Michael Scott points us to a blog post at Mike Cane's blog discussing a question asked in the Google Books help forum asking whether or not a publisher named Kessinger Publishing is taking public domain books scanned by Google, printing them, and then trying to block Google Books from offering the whole thing.

The details are a bit sketchy at this point, but it does seem like Kessinger is taking the public domain books scanned by Google and then offering them for sale. The guy investigating it notes that some of the covers on Kessinger's books clearly show the Google Books-generated cover. Now, it's important to note that Kessinger reprinting public domain books scanned by Google is perfectly legal (perhaps an argument could be made that Google could claim copyright over some aspect of that cover page it generates, but even that seems like a stretch). There's nothing infringing (at least in the US -- elsewhere, it's a bit unsettled) about taking someone else's scan of public domain works and then publishing it yourself.

What's worrying here is the claim that once Kessinger "republishes" these works, that it's somehow getting Google Books to no longer show the full editions of the books. It's not quite as bad as the initial person claims -- that Kessinger is "taking books out of the public domain," as the books do, in fact, remain in the public domain. The real question is why Google is restricting access to these works. If I had to guess, it's probably due to the fact that Google keeps getting hit with (questionable) copyright lawsuits, so they have a "lock-up first, ask questions later" sort of approach to these things. Unfortunately, if that's the case, it lets publishers effectively hide books that should be freely available, at least for the time being.

Filed Under: copyright, google books, public domain