Retroactive Copyright

March 9, 2011 11:25 AM

Library Rights Are at Stake in New Supreme Court Copyright Case Article by Marc Parry appeared in: "Chronicle of Higher Education" March 8, 2011, 4:12 pm Does Congress have the right to restore copyright protection to foreign works that have fallen into the public domain? That issue is at the heart of a major copyright case that the Supreme Court agreed to hear yesterday. Its resolution could have implications for libraries’ ability to share works online, advocates say.
posted by naight (27 comments total)

Well, having extended copyright to infinity going forward, there was nothing left for them to do but start extending it backwards.
posted by Joe Beese at 11:35 AM on March 9, 2011 [11 favorites]

©
posted by blue_beetle at 11:35 AM on March 9, 2011 [1 favorite]

"To promote the Progress of Science and useful Arts, by securing secure for limited Times to Authors Publishers and Inventors the exclusive Right to their respective Writings and Discoveries."
posted by haltingproblemsolved at 11:38 AM on March 9, 2011 [3 favorites]

Won't somebody think of the copyright owners?
posted by Joey Michaels at 11:39 AM on March 9, 2011

their respective
posted by haltingproblemsolved at 11:39 AM on March 9, 2011

Inventors Investors
posted by robocop is bleeding at 11:41 AM on March 9, 2011 [2 favorites]

"restore"? (and to a lesser extent, "fallen"?)

Copyright is a deliberately temporary monopoly granted by the state. You don't "restore" something that ran out for reasons that were good then and are still good now.

Public domain is the default state (i.e. the state that a work reverts to when the copyright period ends), so I can understand the word "fallen" here. But it reads too much like "fallen into sin", like public domain is something to be avoided. Quite the opposite. Copyright is the state of sin, but tolerated for a number of reasons for a limited time.
posted by DU at 11:45 AM on March 9, 2011 [7 favorites]

Public domain is the default state

No it isn't. Copyright vests in a work the moment it is fixed in a tangible medium of expression. For better or worse, copyrighted is the default state now, not public domain.
posted by jedicus at 11:50 AM on March 9, 2011

Yes, I know that. If you read the "i.e." right after that, you'll see what I meant.
posted by DU at 11:52 AM on March 9, 2011

Instead of "default" I guess I should say "long term" or "final" or "stable" or something.
posted by DU at 11:52 AM on March 9, 2011 [1 favorite]

Spooky skeletons are the default state of human beings.
posted by theodolite at 11:55 AM on March 9, 2011 [5 favorites]

The logical end of this mess.
posted by mullingitover at 11:55 AM on March 9, 2011 [5 favorites]

As far as I can tell, the answer is: Yes, Congress has this power.

Congress has the power to do many stupid things. This is one of them. If you don't like it, you can either pursue changes in legislation through your representatives or break the law.
posted by klangklangston at 12:16 PM on March 9, 2011

If you don't like it, you can either pursue changes in legislation through your representatives or break the law.

Or both!
posted by theodolite at 12:18 PM on March 9, 2011 [3 favorites]

To be fair, they aren't talking about re-righting American works that fell out of copyright naturally, but rather works that were always still under copyright in their home countries, but the author never filed for an American copyright. It sounds like this is a requirement of the Berne convention and is part of the trade off we made to such countries, so that they in turn would protect American copyrights.

The idea that closing a one-time loophole between pre and post Berne means the end of the public library seems a bit hyperbolic.

Which is not to say that I don't still think that congress should have never extended American copyrights in the first place.
posted by nomisxid at 12:45 PM on March 9, 2011 [1 favorite]

It sounds like this is a requirement of the Berne convention and is part of the trade off we made to such countries, so that they in turn would protect American copyrights.

That may well be, but if the law is unconstitutional it doesn't matter why it was enacted because treaties are inferior to the Constitution.

The idea that closing a one-time loophole between pre and post Berne means the end of the public library seems a bit hyperbolic.

By the same token, the idea that being constitutionally unable to close that loophole means the end of publishing is also a bit hyperbolic.

That said, I'm inclined to agree with the district court in Golan (this case) and the district court in the Luck's Music case: the 1790 Act retroactively created copyright protection for pre-existing works whose Articles of Confederation-era state law copyright either died with the ratification of the Constitution or which never had state copyright protection at all (i.e. in Delaware, Maryland, and Pennsylvania). Therefore it appears that Congress does have the power to move works out of the public domain.
posted by jedicus at 12:57 PM on March 9, 2011

if the law is unconstitutional it doesn't matter

absolutely agree, I just think having seen how the last attempt to defeat congresses' most recent extension of copyright went, the Supremes' ruling in favor of upholding the law seems like a foregone conclusion. I'd love to be wrong.
posted by nomisxid at 1:05 PM on March 9, 2011

if the law is unconstitutional it doesn't matter

If two out of three branches agree to something, the constitution doesn't matter.
posted by mullingitover at 1:21 PM on March 9, 2011

Just for a point of comparison, there's always the Hoepker v. Kruger case which deals with the same conundrum due to the Berne "issue." But I guess this isn't the ruling copyright owners wanted....
posted by rodz at 1:22 PM on March 9, 2011

If two out of three branches agree to something, the constitution doesn't matter.

How do you figure? Not if the third dissenting branch happens to be the courts. If the courts rule a law unconstitutional, the executive and the legislature are just SOL unless a later court ruling reverses the decision or there's an amendment to the constitution.
posted by saulgoodman at 1:54 PM on March 9, 2011

Hi everybody! Good to see you all again. You know, if we ever do meet-ups by theme, I hope you'll all be able to make it to the copyright/library/publisher meet-up. I really think we'd all hit it off.
posted by Toekneesan at 2:36 PM on March 9, 2011

How do you figure? Not if the third dissenting branch happens to be the courts.

The courts are powerless if the Executive branch declines to enforce their decision and the legislative branch doesn't impeach.
posted by mullingitover at 3:53 PM on March 9, 2011 [1 favorite]

The corporations and ultrawealthy wish to own everything. Literally everything. Own it outright, and lease it back to us.

We, our bodies and minds, are mere grist for the mill. A renewable resource, to be consumed in the production of absurdly concentrated wealth.
posted by five fresh fish at 6:22 PM on March 9, 2011

The courts are powerless if the Executive branch declines to enforce their decision and the legislative branch doesn't impeach.

Ah-ha--so you're assuming there's not a Democrat in the office at the time.
posted by saulgoodman at 7:08 PM on March 9, 2011

(...Because in that case, even if they agreed in theory, the Republicans controlling the legislature would still push to impeach.)
posted by saulgoodman at 7:10 PM on March 9, 2011

After Citizens United and the fall of labor as a political force, I'm no longer operating with the assumption that we have two viable parties. We now have whatever the wealthiest 1% want us to have.
posted by mullingitover at 9:49 PM on March 9, 2011 [1 favorite]

I'm not sure you should be working with the assumption that you've got three independent branches of government.

The public members of those branches are almost all the fantastically wealthy, for one thing.

At least two out of the three branches are owned by private (corporate and investment) interests, and pay scant attention to the interests of the public at large.

Heck, the voting machine scandals and redistricting BS give one cause to wonder whether we were dumb enough to legitimately elect these douchebags.
posted by five fresh fish at 10:24 PM on March 9, 2011