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Supreme Court Engages in Real Copyright Piracy

… by endorsing federal law and policy that takes works already in the public domain and subjects them anew to copyright restrictions…. This is the real piracy.

Update: see also Supreme Court Says Congress May Re-Copyright Public Domain Works.

From a Mike Masnick Techdirt post:

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.

{ 6 comments… add one }
  • Dan Q January 19, 2012, 3:37 am

    So Congress can technically give Rome back the Bible now?

    • Stephan Kinsella January 19, 2012, 12:11 pm


      • Dan Q January 19, 2012, 2:30 pm

        Can they now take Beethoven’s 5th Symphony and assign it to a random descendant, at the expense of all his other descendants? Can they assign the rights to an unrelated random record company who never owned any recording of it?

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