Tags:

The Berne Convention Redux
January 19, 2012 11:08 AM Subscribe

"Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit. "
posted by burnfirewalls (96 comments total) 12 users marked this as a favorite

what the SHIT
posted by beefetish at 11:09 AM on January 19, 2012 [1 favorite]

No, just common sense and basic human decency.
posted by leotrotsky at 11:09 AM on January 19, 2012 [7 favorites]

I don't want to live on this planet anymore.
posted by entropicamericana at 11:12 AM on January 19, 2012 [2 favorites]

I got myself all het up about this yesterday and then realized that this is essentially the price for compliance with the Berne Convention.

After all, we're asking huge chunks of the world to re-copyright our works in their own countries. The least we can do is follow suit.

It sucks, but if we're going to have international copyright compliance this is the startup cost.
posted by Tell Me No Lies at 11:13 AM on January 19, 2012 [8 favorites]

Apparently you can take the pee out of the pool.
posted by Capt. Renault at 11:13 AM on January 19, 2012 [4 favorites]

It's become pretty clear: nothing of current value will ever enter the public domain. I guess that's too close to "socialism" or something?
posted by 2bucksplus at 11:14 AM on January 19, 2012 [12 favorites]

Worst. SCOTUS. Ever.
posted by gwint at 11:14 AM on January 19, 2012 [4 favorites]

Any historians here who could comment and compare this court to previous supreme courts? Worst ever maybe? I'm betting that some fraction of the justices are bribed at this point.
posted by dibblda at 11:14 AM on January 19, 2012

It Is Time To Stop Pretending To Endorse The Copyright Monopoly.
posted by Jairus at 11:15 AM on January 19, 2012 [7 favorites]

Now maybe people will finally believe me when I say the current court ranks among the worst in US history.
posted by saulgoodman at 11:17 AM on January 19, 2012 [4 favorites]

So, what they're essentially saying is that Congress can retroactively make you a criminal?

Whiskey. Tango. Foxtrot.
posted by ChurchHatesTucker at 11:19 AM on January 19, 2012

Does this mean it's time for me and my hard drives to go underground?
posted by philip-random at 11:22 AM on January 19, 2012

Ok, so this sucks, but isn't this basic Constitutional law?

The Constitution pretty clearly says that all Treaties made by the U.S.will be the Law of the Land and we signed the treaty, so we ought to be bound by it.

I'm all for hating on the Supreme Court for overstepping its bounds, but I can't see where the ire comes from on this one.

(Sits back and waits for the actual lawyers)
posted by madajb at 11:22 AM on January 19, 2012 [3 favorites]

WHAT.
posted by TwelveTwo at 11:23 AM on January 19, 2012 [1 favorite]

It seems to me that the hate for this decision comes more from reflexive hate of copyright and the entertainment industry than from any real examination of what happened. Sad.
posted by caddis at 11:24 AM on January 19, 2012 [6 favorites]

For reference: a transcript of the oral arguments. The opinion itself (which is also linked to in the Wired article).
posted by cjelli at 11:24 AM on January 19, 2012 [1 favorite]

So, what they're essentially saying is that Congress can retroactively make you a criminal?

That is not, essentially, what they're saying. No one can prosecute you for using a work while it was in the public domain, just for continuing to use it after it was removed.
posted by sbutler at 11:24 AM on January 19, 2012 [2 favorites]

The entire purpose of copyright is that it is a one-time, temporary monopoly to encourage creation/innovation. So...that's what argues that public domain cannot be exited. Hello?
posted by DU at 11:25 AM on January 19, 2012 [2 favorites]

Got to second Tell Me No Lies' comment. This brings us into compliance with the Berne Convention. It does us no good as a nation to get angry at other country's for breaking our copyright laws (I'm looking at you, China) if we're not willing to respect the copyright laws of other countries.

Yeah, it kind of sucks, but being part of an international community means respecting international laws*.

I'm curious, if anyone knows--how exactly does this ruling bring us into compliance with the Berne Conventions, exactly? And since we adopted those conventions back in 1989, why weren't we already in compliance?

Could the court's decision, as implied by the press coverage, have a more general effect of undermining the permanence of the public domain status in law, or does the decision really only apply narrowly to the particular copyrighted works at issue here?
posted by saulgoodman at 11:25 AM on January 19, 2012

Makes sense to me if we are adhering to an international treaty. I'd like to see the usual conservatives get up in arms over this since they are the ones who are allegedly afraid we will be soon ruled by international law.
posted by zzazazz at 11:26 AM on January 19, 2012

So, what they're essentially saying is that Congress can retroactively make you a criminal?

No. § 514 of the URAA (codified in relevant part at 17 U.S.C. § 104A) created a safe harbor for "reliance parties," who were using formerly public domain works that later had their copyright "restored." However, per this Supreme Court decision, reliance parties cannot continue to use those works after the restoration of the copyright.
posted by jedicus at 11:27 AM on January 19, 2012 [1 favorite]

Yeah but what if create a song with a sample in it from the public domain. MY song becomes a hit and is played on the radio. Then, the song I sampled exits the public domain. Does my song still getting airplay mean it's now in violation?
posted by Foam Pants at 11:28 AM on January 19, 2012 [2 favorites]

That is not, essentially, what they're saying. No one can prosecute you for using a work while it was in the public domain, just for continuing to use it after it was removed.

And the practical legal penalties of having to incur personal expenses to recall your now illegal derivative works from the market? Or of losing associated revenue? How can this help but in effect retroactively penalize what had been legal behavior in the past?
posted by saulgoodman at 11:28 AM on January 19, 2012 [1 favorite]

Is there a way to download the entirety of Project Gutenberg?
posted by TwelveTwo at 11:29 AM on January 19, 2012 [3 favorites]

How will it be ascertained which works would be re-copyrighted? Do the heirs have to make an appeal or will it just be by whim or something?
posted by EmpressCallipygos at 11:29 AM on January 19, 2012

Exactly what happened in Europe when the latest iteration of the Berne convention was adopted here: everything that had been out of copyright under the old rules (life + 50) re-entered copyright under the new ones (life + 70) with James Joyce and George Orwell being two of the more high profile cases.

Joyce is now out of copyright again, as he died in 1941. Orwell will be in 2019, iirc.

Of course, if we get a new round of copyright negotiations and it becomes life + 90 say, these are once again back in copyright...

It's ridiculous, but blame Disney for it.
posted by MartinWisse at 11:30 AM on January 19, 2012 [7 favorites]

TwelveTwo: plenty of torrents of Project Gutenberg exist; latest I downloaded was eight gig.
posted by MartinWisse at 11:31 AM on January 19, 2012

So THAT was the giant cash register sound I heard echoing through the halls of Congress!
posted by vorpal bunny at 11:31 AM on January 19, 2012

How will it be ascertained which works would be re-copyrighted?

In this case, it's works that originated internationally and still hold copyright in the country in which they were produced.
posted by brainmouse at 11:32 AM on January 19, 2012 [1 favorite]

That is not, essentially, what they're saying. No one can prosecute you for using a work while it was in the public domain, just for continuing to use it after it was removed.

File that under "chilling effect."
posted by ChurchHatesTucker at 11:32 AM on January 19, 2012 [4 favorites]

That sound you hear is Pearson Publishing's legal department beginning their march.

"Illiad, Copyright 2012 by Pearson PLC. All rights reserved."
posted by TwelveTwo at 11:33 AM on January 19, 2012 [2 favorites]

It Is Time To Stop Pretending To Endorse The Copyright Monopoly.

This. Digital technology is quickly leading us to a world where information=speech. Where anyone will have the ability to send to anyone else or everyone else on earth, realtime(or faster) audiovisual data of a quality that matches human perceptual abilities. There's no way to stop people from sending copyrighted "content" to each other without also creating a way to stop them from talking to each other. As John Perry Barlow said (paraphrased) "your very term, the content industry, presumes a container which no longer exists"

So now that there's no money in the container industry, we're going to be restricting everyone's speech so that some speech that benefits the very few - often speech created by people now long dead - can be profited off instead of shared freely
posted by crayz at 11:34 AM on January 19, 2012 [14 favorites]

The entire purpose of copyright is that it is a one-time, temporary monopoly to encourage creation/innovation. So...that's what argues that public domain cannot be exited. Hello?

Well, according to Justice Ginsburg, restoring the copyright in these works will induce their dissemination, which is a key part of promoting the progress of the sciences (to use the term in its constitutional sense).

Now, in the age of digital reproduction it seems clear to me that copyright (especially uncertain or even unknown copyright) actually functions to discourage dissemination of works, so it's very strange that she couches her argument in those terms. I suppose she had little choice, since clearly restoring copyright in these works will not induce further creation, since a) most of the authors are dead and b) this was the result of an extension of copyright that did not exist at the time of the works' creation, so it could not have had any effect on the creators at the time.

How will it be ascertained which works would be re-copyrighted?

It's automatic for works that fit the definition of a "restored work" (sorry for the messy formatting: does anyone know how to do indentation in a MeFi-friendly way?):

(6) The term “restored work” means an original work of authorship that—
(A) is protected under subsection (a);
(B) is not in the public domain in its source country through expiration of term of protection;
(C) is in the public domain in the United States due to—
(i) noncompliance with formalities imposed at any time by United States copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements;
(ii) lack of subject matter protection in the case of sound recordings fixed before February 15, 1972; or
(iii) lack of national eligibility;
(D) has at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country, and if published, was first published in an eligible country and not published in the United States during the 30-day period following publication in such eligible country; and
(E) if the source country for the work is an eligible country solely by virtue of its adherence to the WIPO Performances and Phonograms Treaty, is a sound recording.

posted by jedicus at 11:35 AM on January 19, 2012 [2 favorites]

That sound you hear is Pearson Publishing's legal department beginning their march.

"Illiad, Copyright 2012 by Pearson PLC. All rights reserved."

Except, of course, that couldn't happen under the law the Court ruled on.
posted by Bulgaroktonos at 11:36 AM on January 19, 2012

Correct me if I'm wrong, but the following is now something that can happen:

1) Work A enters public domain
2) Author makes epic 10-book fantasy cycle based on Work A
3) Work A goes back into copyright
4) Author has the choice of never again selling his books, or being sued.

That doesn't seem good!
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 11:40 AM on January 19, 2012 [2 favorites]

I'm looking for the author who was on the fence about creating a new work, since it would only benefit his offspring for fifty years after his death, but was suddenly motivated by the possibility that it could benefit a generation yet unborn seventy years after his death.

"Well, now it's worth it."
posted by ChurchHatesTucker at 11:40 AM on January 19, 2012 [16 favorites]

No one can prosecute you for using a work while it was in the public domain, just for continuing to use it after it was removed.

What if I had a work on my hard drive? What if I'd downloaded it and it's sitting in iTunes in my "At the Office" playlist that I've got on shuffle every day? Am I now required to go back through and find previously public domain works that I'm now breaking the law by possessing? This doesn't strike you as slightly ... bullshit?
posted by crayz at 11:41 AM on January 19, 2012

It's become pretty clear: nothing of current value will ever enter the public domain.

One fact that illustrates this pretty effectively is that in the US not only has no audio recording ever entered the public domain through copyright expiration, but the most recent federal copyright extension law passed has pushed the date when the first audio recordings can have their copyright expire to 2067. So even if no further extensions are passed (which seems unlikely) it's still a 50+ year wait before it's legal to copy or otherwise use the oldest audio recordings currently protected by copyright.
posted by burnmp3s at 11:41 AM on January 19, 2012 [6 favorites]

I am constantly grumbling to my friends about how fucked up US copyright law is. "You're just saying that because you like fanfiction," they scoff.

No. It's because of shit like this.
posted by Narrative Priorities at 11:45 AM on January 19, 2012

Except, of course, that couldn't happen under the law the Court ruled on.

I think it actually could if Greece made it the law of the land in Greece that their copyrights extend for life +3000 years. Then we'd have to move any copyrighted works produced by Greek creators in the last 3000 years out of the public domain in the US too under this ruling, to comply with the change in international law.
posted by saulgoodman at 11:45 AM on January 19, 2012 [1 favorite]

Correct me if I'm wrong, but the following is now something that can happen: ... 4) Author has the choice of never again selling his books, or being sued.

No. 17 U.S.C. § 104A(d)(3) covers derivative works made by reliance parties prior to the copyright restoration of the original work. Basically either the parties agree to reasonable compensation or a U.S. district court can come up with it, but an injunction is not available. The reasonable compensation should "reflect any harm to the actual or potential market for or value of the restored work from the reliance party’s continued exploitation of the work, as well as compensation for the relative contributions of expression of the author of the restored work and the reliance party to the derivative work."

So, yeah, money has to change hands, but it's a reasonable royalty, not an injunction or statutory damages, so it's far less horrible than regular infringement.
posted by jedicus at 11:45 AM on January 19, 2012 [3 favorites]

It's ridiculous, but blame Disney for it.

I really want to toss Mickey into the dip.
posted by Mister Fabulous at 11:46 AM on January 19, 2012 [2 favorites]

Except, of course, that couldn't happen under the law the Court ruled on.

The door isn't open wide, but it will be pried open wider. It is always easier to say no when the answer is always concretely and absolutely no. It is harder to say no, when that yes is on the table. Now that the answer depends, maybe, not in this case, no, but in that case, yes, as for this case. . . it is only a matter of time and ingenuity.
posted by TwelveTwo at 11:46 AM on January 19, 2012 [2 favorites]

I am agreeing with Sam Alito and it is BLOWING MY FUCKING MIND.
posted by braksandwich at 11:46 AM on January 19, 2012 [1 favorite]

One fact that illustrates this pretty effectively is that in the US not only has no audio recording ever entered the public domain through copyright expiration, but the most recent federal copyright extension law passed has pushed the date when the first audio recordings can have their copyright expire to 2067.

Wait. I hate to be That Guy, but source? Because if I'm reading this correctly, anything recorded before 1923 is in the public domain. Things are bad enough without having to exaggerate.
posted by entropicamericana at 11:49 AM on January 19, 2012 [1 favorite]

I think it actually could if Greece made it the law of the land in Greece that their copyrights extend for life +3000 years. Then we'd have to move any copyrighted works produced by Greek creators in the last 3000 years out of the public domain in the US too under this ruling, to comply with the change in international law.

No, that's not how it works. Berne requires national treatment, which means a work is protected unless the works’ copyright term has expired in either the country where protection is claimed or the country of origin. A country can't impose longer copyrights in another country just by changing its own copyright duration.

What happened here is that the U.S. signed Berne but treated domestic and foreign works differently, which Berne does not allow, per the above. So the U.S. enacted the URAA to treat domestic and foreign works the same, which meant re-copyrighting previously public domain foreign works that were still copyrighted in their home countries.

So suppose Greece retroactively extends copyright back 3000 years. That means that Greece must do the same for foreign and domestic works, per Berne (so ancient Mayan art is now copyrighted in Greece). But the U.S. is under no obligation to honor Greece's extension within the U.S.

tl;dr: Berne prohibits discrimination against foreign-created works, but it does not require that all countries' copyright term move in lockstep.
posted by jedicus at 11:55 AM on January 19, 2012 [2 favorites]

From Jairus's link:

There is a saying in the political discussion in Sweden: "Anything you say before but in a political statement doesn't count."

Ooh, I like that.
posted by tyllwin at 11:56 AM on January 19, 2012

Yeah, it kind of sucks, but being part of an international community means respecting international laws*.

1. Step 1: Pressure other countries like Canada and Spain to adopt draconian copyright/IP laws due to lobbying and pressure from entertainment industry.
2. Claim we need to take away these public works at home because of these international laws. "We have no choice!"
3. Yet more elimination of public goods and the continual privatization and ownership of everything, everywhere.
posted by formless at 12:01 PM on January 19, 2012 [9 favorites]

This gives me an idea for how you could implement Sonny Bono's "forever less one day" copyright idea. Of course you can't say it expires one day from the end of forever -- on a practical level, you're either left trying to figure out how to compute infinity minus 1, or you're playing Nostradamus trying to nail down the day before the end date of human history.

But you *could* have a day every year where works enter the public domain.

Of course, now that we know there's no reason why public domain works can't just enter the realm of copyright again, we could just say that after 24 hours, the copyright on the work returns to whoever held it.

Now, why should that "one day" be contiguous? Why not have a public domain hour twice a month? Public domain minutes or seconds scattered at various statutory times throughout the year? Better for creative types if the times when it's OK to copy are limited and short, right?

And really, why stick to Bono's "less one day" formula? To stick to the letter of the law, we only need satisfy that the time of copyright is limited. Having a copyrighted work spend a single second in the public domain during the year in which its copyright expires -- and then allowing it to subsequently exit the public domain -- would constitute a limited time.

And sure, the copyright and patent clause does contain some other stipulations, but don't you all think it's pretty clear that we long ago just assumed at face value the idea that perpetual copyright is inherently something that promotes progress?

It sucks, but if we're going to have international copyright compliance this is the startup cost.

If the price of international copyright compliance really is a legal doctrine that works can leave the public domain, it's not worth it. If that deserves to exist at all, it needs a better foundation.

And it might just be I'm in a bad mood today after watching the content cartels issue all manner of bullshit over PIPA and SOPA and a significant chunk of congress still apparently clueless and lacking in the ability to do related policy right, but right now I'd happily see the entire intellectual property edifice burnt to the ground.
posted by weston at 12:03 PM on January 19, 2012

Berne prohibits discrimination against foreign-created works, but it does not require that all countries' copyright term move in lockstep.

And yet that's the justification that the court used.
posted by ChurchHatesTucker at 12:04 PM on January 19, 2012

Wait. I hate to be That Guy, but source? Because if I'm reading this correctly, anything recorded before 1923 is in the public domain. Things are bad enough without having to exaggerate.

It doesn't say that in your link as far as I can tell. In the "Sound Recordings Published in the United States" section, under "Fixed prior to 15 Feb. 1972", it says "Subject to state statutory and/or common law protection. Fully enters the public domain on 15 Feb. 2067". Obviously state statues vary by state, but in general the default is indefinite copyright protection at that level, and they are definitely not officially in the public domain at a federal level until 2067. Here's a more in-depth explanation of the complicated details, but the bottom line is that full copyright expiration into the public domain under the current law is not going to happen until 2067.
posted by burnmp3s at 12:08 PM on January 19, 2012

Ok, so this sucks, but isn't this basic Constitutional law?

The Constitution pretty clearly says that all Treaties made by the U.S.will be the Law of the Land and we signed the treaty, so we ought to be bound by it.

Ah, but the Constitution is the Supreme law of the land and trumps treaties where they conflict. There were at least a couple of arguments that the Constitution prohibits what happened. One argument is that copyrights are allowed for "limited times." Now, the Court already ruled in Eldred that limited really just means "finite," since existing copyrights can be extended retroactively (by, e.g., the Sonny Bono Copyright Term Extension Act). But, then, if "limited" is to have any meaning at all then surely retroactively restoring copyright to something that had entered the public domain is prohibited? Otherwise it seems that there's no limitation on copyright term at all, except that copyright term cannot be literally infinite.

According to Ginsburg, however, "We see no such barrier in the text of the Copyright Clause, historical practice, or our precedents."

Another argument is grounded in the First Amendment. By using works in the public domain, the artists in the suit were engaged in fully protected speech. Now along comes Congress and declares "nope, you can't do that anymore (with an exception for derivative works in which case you have to pay somebody to keep doing it)." Normally that leads to a pretty high standard of review.

The Court concluded, as it had in Eldred, that since copyright prohibits the copyrighting of mere ideas (as opposed to creative expressions) and since it has a fair use defense, there's no need to even go into the usual First Amendment review. Those two "safeguards" are ipso facto sufficient, and the URAA didn't disturb them. Now, since nobody is claiming that the restored works aren't copyrightable subject matter or that fair use applies, this seems like crap to me. It's like saying "Well, you were accused of assault and raised a defense of self-defense. However, the defenses of duress and insanity exist, so we're not going to consider self-defense. Those other defenses should be enough for anybody."
posted by jedicus at 12:09 PM on January 19, 2012

And yet that's the justification that the court used.

No it isn't. Nothing in the URAA or Berne means that if a foreign country increases its copyright term that the U.S. must honor that longer copyright term, retroactively or otherwise.
posted by jedicus at 12:16 PM on January 19, 2012

Nothing in the URAA or Berne means that if a foreign country increases its copyright term that the U.S. must honor that longer copyright term, retroactively or otherwise

No, but according to the court it could happen... in order to meet the treaty obligations.

So yeah, they don't have to do it. But they can. For great justice.
posted by ChurchHatesTucker at 12:22 PM on January 19, 2012

I'm not a lawyer and not even an American, but isn't the function of the SCOTUS to determine whether a legislation or lower court decision violates the constitution? If so, then this decision doesn't say the court agrees with the legislation, only that they can't find constitutional grounds to overturn it.
posted by rocket88 at 12:22 PM on January 19, 2012

Is it just me or does anyone else get the impression that the Court's holding, that formerly copyrighted works can leave the public domain, was only logical necessity, rather than the establishment of a mandate or doctrine, to allow the U.S. to remain in treaty compliance.

Sure. But compliance with the constitution is supposed to be more important than compliance with a treaty. A treaty that violates the constitution is supposed to have no force. We can't sign a treaty, for example that makes Obama President for life and the argue that we have to be compliant.

Does anyone think that a majority of the Court would find constitutional a law put in place that makes every book released in June of 1882 no longer public domain?

Yes, actually. If the law had a stated purpose. I think "limited time" means about as much as "forever" in a treaty between the US and Native Americans.
posted by tyllwin at 12:24 PM on January 19, 2012

By the way, the restoration of copyright occurred back in 1996. It's not like this happened recently or only as a result of the Court's decision.

Don't get me wrong: I disagree with the decision, I disagree with the rationale, and copyright law is badly screwed up in lots of ways, but unless you're a § 104A reliance party this decision doesn't affect you directly because it amounts to upholding the status quo that has existed for 16 years.

No, but according to the court it could happen... in order to meet the treaty obligations.

No! If a foreign country increases its copyright term, then the U.S. is under no treaty obligation whatsoever to increase its copyright term to match. The U.S. can be in full compliance with Berne by keeping its current term forever, as long as it treats domestic and foreign works the same.

What the Court said is that the U.S. can put public domain works back into copyright by passing a law to that effect. In this case it did so because of a treaty obligation that existed at the time (but is no longer an issue because it was fixed by the URAA). The treaty obligation is just the motivation for the law, not the justification for why the law was constitutional because a treaty can never trump the Constitution.
posted by jedicus at 12:26 PM on January 19, 2012 [3 favorites]

Now I don't know whether or not I am being hysterical. These times, they are ambiguous.
posted by TwelveTwo at 12:27 PM on January 19, 2012 [1 favorite]

Yes, actually. If the law had a stated purpose. I think "limited time" means about as much as "forever" in a treaty between the US and Native Americans.

First of all, I don't know where Native Americans fit into this, but the copyright clause empowers congress as follows: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." How would my aforementioned hypothetical law be justified as having any purpose that promotes science and arts? Otoh, compliance with an international copyright treaty certainly makes a much more compelling case for retroactive re-copyrighting of public domain works.

My point is, I don't see this case paving the way for capricious copyright laws that aimed only at allowing their backers to capitalize on the licensing the performance of Mozart symphonies and what not. It's a limited holding.
posted by gagglezoomer at 12:31 PM on January 19, 2012

The only good part about this is that eventually the Roman Catholic Church is going to re-own the rights to The Holy Bible and all the pissed-off Republican Evangelicals here in the US will have to acquaint themselves with torrents very quickly.
posted by Avenger at 12:34 PM on January 19, 2012 [4 favorites]

oh snap, i knew scrolling existed for a reason. thanks, burnmp3s.
posted by entropicamericana at 12:35 PM on January 19, 2012

Seriously, there might be problems with this treaty, but I don't see any way it could be used to copyright Homer.

Of course not literally.

Look: let's get this straight. If the court has ruled that as a matter of principle, it is in constitutional bounds for congress to pass a law that moves a work out of the public domain, then it seems to me the court has created a precedent that later courts will cite to justify further, less-innocuous-seeming uses of this congressional power, and that's the bad news from this decision. Well, that and it's a crappy deal for content creators who make use of public domain works in derivative works and it creates even more uncertainty in an already confusing and uncertain area of law.

What I don't get is this: even though the law doesn't directly penalize use of public domain works after they've been removed from the public domain under this ruling, it stands to reason there would be de facto, practical penalties for the use of public domain works in that case, since you'd have to take steps to get in compliance if the status of a work you'd used later changed. That seems an awful lot like the law retroactively penalizing legal behavior in practice, even if it isn't according to the strict letter of the law. Did that isssue even come up during the arguments in this case?

My point is, I don't see this case paving the way for capricious copyright laws that aimed only at allowing their backers to capitalize on the licensing the performance of Mozart symphonies and what not. It's a limited holding.

Why? You don't think a subsequent court could hold that the take home precedent the court set here is that congress has a constitutionally-kosher power to remove works from the public domain through legislation? If that's how it's taken, then for all practical purposes, what would stop congress from doing whatever it wanted in this area?
posted by saulgoodman at 12:37 PM on January 19, 2012

I'll just continue to ignore copyright, so whatever.
posted by empath at 12:40 PM on January 19, 2012 [3 favorites]

How would my aforementioned hypothetical law be justified as having any purpose that promotes science and arts?

Congress, in its wisdom, decided that the works produced in June of 1882 were particularly valuable. This could be justified by a fairly cursory Congressional finding. Or, perhaps Congress, in its wisdom, decided that the works produced in June of 1882 were undervalued by the market because they lacked a copyright holder, and that by restoring the copyright the property owners would then maximize the value of the works in a way that the public domain was not. This could also be justified by a fairly cursory Congressional finding.

Then, the federal courts would look to see if Congress had or could have had a rational basis in enacting the law. As long as there was some possible rational link between the enactment of the law and the promotion of the progress of the sciences (which can include the promotion of the dissemination of the works), then Congress is in the clear. Since at least some works were produced in June, 1882 and, according to this opinion, their dissemination would be promoted by restoring their copyright, there is arguably a rational basis for the law to exist.

And that's without getting in to alternative theories like "Well, maybe Congress, in its wisdom, wanted to perform an experiment to see if restoring copyright is a good thing, so it picked a month more or less at random to see how it fares. We should applaud this new scientific approach to legislation."

The real lesson of this opinion is that the public domain exists at the pleasure of Congress, and no one, not even people who rely on it in good faith, has a right to the public domain's existence.
posted by jedicus at 12:44 PM on January 19, 2012 [3 favorites]

Otoh, compliance with an international copyright treaty certainly makes a much more compelling case for retroactive re-copyrighting of public domain works.

What the actual fuck?

The POINT of copyright was (and is apparently not anymore) to encourage contributions to the public domain by allowing a limited monopoly on the right to copy (hence the name.) That was the deal. That was supposedly in the public interest. I can't see a public interest in perpetual copyright, although I can see why monopolists and authoritarians are all for it.

Rulings like this, which means the public domain is fair game, are counter-fucking-productive. Full stop.
posted by ChurchHatesTucker at 12:44 PM on January 19, 2012 [3 favorites]

ChurchHatesTucker,

Did you read any portion, even the syllabus, of the court's ruling before criticizing to my comment on its basis?
posted by gagglezoomer at 12:51 PM on January 19, 2012

The POINT of copyright was (and is apparently not anymore) to encourage contributions to the public domain by allowing a limited monopoly on the right to copy (hence the name.)

Well, again, Justice Ginsburg disagrees:

Nothing in the text of the Copyright Clause confines the “Progress of Science” exclusively to “incentives for creation.” Evidence from the founding, moreover, suggests that inducing dissemination—as opposed to creation—was viewed as an appropriate means to promote science.

posted by jedicus at 12:52 PM on January 19, 2012

tl;dr: There is no such thing as the public domain. Just like there is no such thing as the public interest, public space, or society.
posted by saulgoodman at 12:52 PM on January 19, 2012 [2 favorites]

So far as Native Americans, I apologize if that was a distraction. It was meant to convey the idea that while citizens may have rely on a nieve reading of "limited time" to have common-sense meaning, the court's interpretation of it can render any "limit" meaningless. I was simply drawing a parallel with the way the courts used to creatively interpret words like "forever" in order to find politically expedient actions to be constitutional. I could just as well have drawn a parallel with the infinite stretching of the words "interstate commerce" instead. My only point was that "limited time" in the clause is not a barrier to this court.

But how could a court find it possible to move the date to 1882? First, they could find the words "To promote the Progress of Science and useful Arts, by" to be a meaningless preamble, saying that Congress need not express any goal of progress at all. Or they could simply defer to any nonsensical rationale Congress set forth. What in this decision (or in the decision about the the previous lengthening of terms to prevent things falling into the public domain) would prevent a move back to 1882?
posted by tyllwin at 12:53 PM on January 19, 2012

First off: Samuel Alito? You are a scum bag and a terrible idealogue, I am glad however that in this case your ideology aligned you with the public interest (for once).

Second: This is the way the game is played. The Bernes Convetion is an excuse, a terribly convenient excuse, to continue the copyright snafu and to continue the momentum of said snafu in the wrong direction. Its a step towards creative heat-death.
posted by Slackermagee at 12:55 PM on January 19, 2012

Did you read any portion, even the syllabus, of the court's ruling before criticizing to my comment on its basis?

Yes.
posted by ChurchHatesTucker at 12:59 PM on January 19, 2012

was meant to convey the idea that while citizens may have rely on a nieve reading of "limited time" to have common-sense meaning, the court's interpretation of it can render any "limit" meaningless.

I'm a lawyer, so my grasp of "common-sense" meanings might not be great, but I would always read "limited" to mean any unit of time less than forever. I don't see many people taking another meaning from it.
posted by Bulgaroktonos at 1:30 PM on January 19, 2012

You know how Big Copyright is always claiming that someone downloading a torrent of a movie is "theft?"

No, see, this is theft. This, right here. They're taking something that belonged to everyone and saying that we don't own it anymore. It isn't right.
posted by webmutant at 1:40 PM on January 19, 2012 [12 favorites]

I'm a lawyer, so my grasp of "common-sense" meanings might not be great, but I would always read "limited" to mean any unit of time less than forever. I don't see many people taking another meaning from it.

Well, in the modern sense at least it means "restricted in size, amount, or extent; few, small, or short." So there is a connotation not just of finiteness but of being on the short side of things. We've increased the copyright term by 5-10 times what the early Congresses felt was appropriate while technology has enabled far more rapid production, copying, and sale of works.

It seems legitimate to question whether at some point the copyright term becomes in different in kind rather than just degree, especially now that it has surpassed the median life expectancy by a significant amount. A person born today will likely see not a single work created during his or her lifetime pass into the public domain.

They're taking something that belonged to everyone and saying that we don't own it anymore.

Justice Ginsburg addressed that argument by saying that no one ever owns anything in the public domain. That is, no one has any right to it and so cannot complain (in a legal sense) when works are removed from it. For her, "public domain" is simply the absence of copyright.
posted by jedicus at 3:04 PM on January 19, 2012 [1 favorite]

Justice Ginsburg addressed that argument by saying that no one ever owns anything in the public domain.

Can we get her to a hospital? She clearly has had some kind of head trauma.
posted by ChurchHatesTucker at 3:09 PM on January 19, 2012 [3 favorites]

Speaking on behalf of the rest of the world, we are charmed that the USA wishes to retain the special-snowflake status that it maintains in so many other areas (the right to use a system of measurements that is both illogical and obsolete; the right to assassinate foreign nationals without due process or trial; the right to arrest and hold anyone anywhere in the world without due process or trial; torture; and sundry other practices normally reserved for particularly backward and/or dictator-led regimes) but there is this thing called the rest of the world, and it's not just that we outnumber you and are getting pretty sick of your shit, but you expect to do business with us on equal terms and footings, and have signed up to various international treaties to that effect. You expect us to fall into line and not complain whenever you come up with another way that you're going to improve the world. We don't often ask for things in return, but this is one of those times.
posted by Hogshead at 3:36 PM on January 19, 2012

the right to assassinate foreign nationals without due process or trial; the right to arrest and hold anyone anywhere in the world without due process or trial

Hey! We are NOT special snowflakes there.

We do that to ourselves too.
posted by ChurchHatesTucker at 3:38 PM on January 19, 2012 [1 favorite]

We don't often ask for things in return

Noted

All joking aside, I'm more with Hogshead than not (though I also think that life of artist and/or spouse plus twenty, twenty-five years is plenty.

I'm also guessing that a lot of the outraged here are unaware of how, say, the French view copyright. Which is important to know about since it was the French who got the whole Berne convention started back in the day. Surprised it wasn't the English since the story of the nineteenth century was how American rip off artists failed to pay residuals to the likes of Charles Dickens. (Coincidentally, it's his 200th anniversary. I'm sure he'd appreciate the irony.)

Sampling, you say? Hmmm.

Oh, it's a big world out there.
posted by IndigoJones at 4:32 PM on January 19, 2012

Everything that had been out of copyright under the old rules (life + 50) re-entered copyright under the new ones [including] George Orwell.

The works of George Orwell have always been under copyright until 2019.
posted by justsomebodythatyouusedtoknow at 5:04 PM on January 19, 2012 [5 favorites]

The works of George Orwell have always been under copyright until 2019.

Don't tell the Aussies.
posted by ChurchHatesTucker at 5:55 PM on January 19, 2012

I think that if We, The People aren't getting what we should out of the deal ( specifically, that the works that promote the progress of science and the useful arts enter the public domain in a reasonable time to facilitate the general welfare ) -- That kind of got away from me. Let me start over.

I think that if We, The People aren't getting what we should out of the deal, we should just pull out of the deal.

No more copyrights and patents. We give up. It just didn't work out.

If the MPAA and suchlike are really, really good Capitalists, they'll welcome the open market competition and end of their collective subsidies.
posted by mikelieman at 6:41 PM on January 19, 2012

If the MPAA and suchlike are really, really good Capitalists, they'll welcome the open market competition and end of their collective subsidies.

What are you? Some kind of commie?
posted by ChurchHatesTucker at 6:45 PM on January 19, 2012

How does the US promote its copyright protections in, say, China when it won't promote international copyright protections here in the US?

I'm not a fan of copyright limitations for the most part, but a signed treaty is the Law of the Land just as much as the text of the Constitution, according to the Constitution.

If you don't like the Berne Convention, encourage your elected politicians to withdraw from the treaty. Keep in mind, though, that the move likely harms US copyright more than helps on an international scale.
posted by jabberjaw at 10:26 PM on January 19, 2012

And so the slippery slope begins...

Welcome to the Land of The Free To Do What We Are Told.
posted by Samizdata at 12:18 AM on January 20, 2012 [1 favorite]

They're taking something that belonged to everyone and saying that we don't own it anymore. It isn't right.

Previously.
posted by titus-g at 1:04 AM on January 20, 2012 [2 favorites]

It's easy to dismiss the re-copyrighting of Homer, but what about convincing the Danes to extend copyright to date of death + 150 years? Then H. C. Andersen's works would pass back into copyright, undoing a lot of adaptations of his stories, not the least being Disney's Little Mermaid franchise. The resultant outcry from America's shores would be a wonder to behold.
posted by Harald74 at 4:30 AM on January 20, 2012

They're taking something that belonged to everyone and saying that we don't own it anymore. It isn't right.

Bringing back the Dickens thing - one day he had no copyright protection in the US and wasn't paid. It wasn't right. The law was changed and furriners began to get paid.

By your logic, however, the US public was being suddenly robbed. Don't see it that way, myself.
posted by IndigoJones at 5:40 AM on January 20, 2012

Bringing back the Dickens thing - one day he had no copyright protection in the US and wasn't paid. It wasn't right.

Really? Did he stop writing until this injustice was corrected? Did he become more prolific after?

What did the public gain in return for granting him that monopoly, except the right to buy his work at a premium?
posted by ChurchHatesTucker at 7:26 AM on January 20, 2012 [1 favorite]

The important point some are missing here is that this is another major step toward the complete expurgation from American civic life of the core cultural concepts of the commons, the commonwealth, and the public good, and another step toward an embrace of the isolated, anti-social Objectivist worldview that sees only isolated private "individualist heros," all struggling against each other Highlander-style until one of them reaches the apex of Social Darwinian evolution and becomes some kind of free-market-powered Godhead.

If, as Ginsburg sees it, "no one" owns the contents of the public domain, that's only because US law implicitly no longer recognizes the existence of the public at all and sees only private ownership as a legitimate form of ownership anymore.

Guess that explains why we've been so busy selling off public resources and ignoring the public interest lately.

The original intent of copyright law was to encourage filling up the store of human culture for everyone's shared benefit (the public good). But now those laws are being used to actively stymie the growth of the commonwealth. How ironic.
posted by saulgoodman at 7:31 AM on January 20, 2012 [3 favorites]

What did the public gain in return for granting him that monopoly, except the right to buy his work at a premium?

Well, if Dickens was still alive and American hucksters were making money off of selling his work and not sharing any of the proceeds with him, then the problem isn't with what the public gained or lost, it's with what one set of private interests gained at the expense of another.

It's not like the issue was that Dickens' works were just being shared freely with the public. Private parties were profiting by it without sharing their profit with him. That's not in the public interest either.
posted by saulgoodman at 7:38 AM on January 20, 2012

It's not like the issue was that Dickens' works were just being shared freely with the public. Private parties were profiting by it without sharing their profit with him. That's not in the public interest either.

Of course it was. Multiple publishing houses were offering his works to the public.
posted by ChurchHatesTucker at 10:08 AM on January 20, 2012 [1 favorite]

For free public use? If that's so, then I stand corrected. I honestly don't know the particulars in that case, but I still wouldn't be on the side of the pirates if they were extracting profit for themselves before making Dickens' work available to the public, if Dickens himself wasn't making a dime. That violates the principle of paying a fair wage for a fair day's work and puts the third party publishers in the position of exploiting Dickens' as a laborer.
posted by saulgoodman at 11:00 AM on January 20, 2012

Harald74: "It's easy to dismiss the re-copyrighting of Homer, but what about convincing the Danes to extend copyright to date of death + 150 years? Then H. C. Andersen's works would pass back into copyright, undoing a lot of adaptations of his stories, not the least being Disney's Little Mermaid franchise. The resultant outcry from America's shores would be a wonder to behold."

I would punt a baby, hell, TWO babies (although not at the same time as I am just not that coordinated) just to see Disney get bitten on copyright.
posted by Samizdata at 10:36 PM on January 20, 2012

« Older Previously the Guardian has done a series on Write... | Nine ways scientists demonstra... Newer »

This thread has been archived and is closed to new comments

The Berne Convention Redux January 19, 2012 11:08 AM Subscribe

The Berne Convention Redux
January 19, 2012 11:08 AM Subscribe