7 ms·

High court challenge to law that puts public-domain works back under copyright

166 points by grellas 16y ago

D3lt4 16y ago
If this passes, I could easily see this abused.
- jerf 16y ago
  "If"? It went into effect January 1st, 1995: http://en.wikipedia.org/wiki/Uruguay_Round_Agreements_Act http://en.wikipedia.org/wiki/Uruguay_Round_Agreements_Act I was surprised by that date too. I know things take time to work through the courts, but wow. Apparently the case was originally filed in 2001.
  - _delirium 16y ago
    The timeline seems to be something like: 2001: filed in district court 2002: put on hold pending Eldred v. Ashcroft 2003: reactivated with amended complaint 2004: district court denies gov't motion to dismiss 2005: district court grants gov't summary judgment 2006: appeal briefed/argued in circuit court 2007: suit partly reinstated by circuit court 2008: circuit court denies gov't petition for rehearing 2009: district court now rules in favor of plaintiffs 2010: circuit court now reverses, dismissing suit after all 2011: supreme court agrees to hear the case The main weirdness is that each side has won once in each of the two courts, so it's made a bunch of trips back and forth. That and getting tied up with Eldred v. Ashcroft for 2 years at the start.
dpapathanasiou 16y ago
And who would wind up owning those copyrights?
- dpapathanasiou 16y ago
  Not sure why the negative reaction, but it's a serious question. If pd copyrights revert, and the estate is not clear or no longer in existence, what happens then? A feeding frenzy of copyright trolls, or are there futures somewhere, in anticipation of this happening?
  - ig1 16y ago
    It goes to the next-of-kin, regardless of whether they know about it or not. Depending on jurisdiction if there's no next of kin ownership may transfer to the government.
- Symmetry 16y ago
  Given that these are all works in copyright _somewhere_, you presumably just have to look at who the copyright holder is in the jurisdictions where the works have been in continuous copyright.
- njharman 16y ago
  Who would own derivative works made while it was in public domain? I create a derivative work (compilation of my favorite chapters from X PD books, including much new commentary from me). The copyrights to that belong to me (in US at least). Then all of the sudden those X PD books are now copyright by X new/previous holders. What a cluster fuck. Make bunch of lawyers rich arguing over it though.
  - _delirium 16y ago
    That's part of the case, if I understand it: some of the plaintiffs are publishers who published sheet music that was at the time in the public domain, but was then re-copyrighted, forcing them to pull those publications. What unfortunately doesn't seem to be part of the case, but would make for an even stronger plaintiff (at least rhetorically), would be an orchestra that recorded a public-domain work but then found itself unable to distribute its own recording, once it was re-encumbered.
- Natsu 16y ago
  If the stuff was out of copyright, they would revert to the public domain in the US (in other countries, the copyright status would remain unchanged). In short, no one would end up owning the copyright for works where copyright has expired. That's kind of the problem here. People made derivative works of out-of-copyright materials that they wholly owned. Then Congress revived some zombie copyrights and threw everyone into limbo.
haberman 16y ago
Larry Lessig wrote a great article about Eldred v. Ashcroft, which he called "The Big One," since it was challenging the power of congress to keep extending copyright terms as they have been continually since the beginning of the 20th century. Lessig lost the case, which was a crushing defeat to him because he believes that with the right strategy it could have been won. http://www.legalaffairs.org/issues/March-April-2004/story_lessig_marapr04.msp http://www.legalaffairs.org/issues/March-April-2004/story_le... Lessig says that his mistake was framing the case around a somewhat abstract argument: earlier cases like United States v. Lopez (1995) had found that when the Constitution grants congress an enumerated power, that power must be interpreted in a way that makes it limited. The theory was that if congress could keep extending the term of copyright whenever more works were about to fall into the public domain, their power over copyright terms was effectively unlimited. It seemed like such a simple, watertight argument and the Supreme Court had bought it recently for other cases. Lessig made this argument the center of his case, and redirected every line of questioning with the Supreme Court justices back to this theory. When Justice Kennedy asked if there was any actual harm in practice, Lessig answered: "Justice, we are not making an empirical claim at all. Nothing in our copyright clause claim hangs upon the empirical assertion about impeding progress. Our only argument is, this is a structural limit necessary to assure that what would be an effectively perpetual term not be permitted under the copyright laws." The justices wanted to see the actual harm, but Lessig only gave them an abstract argument. This is unfortunate because Lessig has made an entire career out of describing the benefits of "Free Culture." The EFF is surely aware of Eldred and its unfortunate outcome, and it appears that their strategy is much more focused on showing the actual harm: "In their briefs, both Mr. Golan and the Internet Archive pointed out that allowing Congress to remove works from the public domain inserts potentially paralyzing uncertainty to the system and harms people’s First Amendment rights to receive and share information. These concerns are even more pronounced now in light of technologies that make sharing and storage more accessible, and allow important institutions like the Internet Archive to thrive."
- tokenadult 16y ago
  Lessig made this argument the center of his case, and redirected every line of questioning with the Supreme Court justices back to this theory. As a lawyer who used to be a judicial clerk for an appellate court, and who has heard many oral arguments before that appellate court, I can't believe that Lessig would muff up on this basic issue of legal argumentation. Argue your preferred theory, sure, but also go along with any hints the court gives you in its order calling for review of the case or in oral argument about what alternative theory to use to PERSUADE THE COURT. The lawyer's duty to the lawyer's client is to win the case, after all, and especially if you have any factual basis for saying that a particular appellate decision would result in actual real-world harm, in addition to being inconsistent with sound abstract legal principles, SAY SO. I'm glad to see that Lessig is forthright about acknowledging his mistake, and I wish him well the next time he has opportunity to argue the issues dearest to this heart before an appellate court.
ylem 16y ago
This is rather scary--How does this effect public domain code? For example, if I release some public domain code, can someone else copyright it with a minor variation and then stop me (and others who use the code) from using the original code?
- michael_dorfman 16y ago
  No. Not a chance. This is not about things that authors have "released" to the public domain, but about works whose copyright expired in the US, but not in Europe, before the copyright lengths were aligned. No one is suggesting a general principle whereby one could go about copyrighting random works from the public domain as a matter of course.
- __david__ 16y ago
  In the US you can't put your code into the public domain. Every work you produce is copyrighted and while you can assign copyright to someone else, you can't "remove" it from a work. The only way for something to become public domain is for the copyright to expire (which is practically never at this point).
  - timwiseman 16y ago
    you can't "remove" it from a work. I am not a lawyer, but I believe you are mistaken. In the US, so long as your are the legitimate holder of the copyright you may voluntarily waive all rights and surrender the work to the public domain. You may also user certain licenses such as those proposed by the Creative Commons which waive most rights without actually releasing it to the public domain. Certain other countries are slightly different in that they recognize "Moral rights" that are perpetual and unwaivable.
  - anigbrowl 16y ago
    Not so - you just have to make an overt statement that you are abandoning your rights. For example, I hereby waive any and all copyrights in this Hacker News comment, now and forever. Enjoy! See paragraph 22 in this entertaining and interesting opinion about the copyright status of user-created videogame levels for a more detailed explanation; as far as I'm aware nothing has changed since then: http://ftp.resource.org/courts.gov/c/F3/154/154.F3d.1107.html http://ftp.resource.org/courts.gov/c/F3/154/154.F3d.1107.htm...
rflrob 16y ago
As much as this does seem like a bad bill, Congress is specifically prohibited from passing ex post facto laws, so at the very least, "infringing" copyrights that were later de-public domain-ed shouldn't be a violation. It doesn't seem like EFF's statement that "those who have used the works could now be required to pay hefty license fees" could possibly be constitutional, although the fact that they couldn't use them in the future without paying fees is a shame.
grellas 16y ago
The legal argument in this case is twofold: (1) that Congress lacks the constitutional power to enact a copyright statute that does not in fact work to promote the progress of the arts, etc.; and (2) that the particular enactment here - taking works that were already in the public domain and conferring upon them ex post facto copyright protection - violates the free speech rights of individuals (including libraries and other repositories of public-domain works) by subjecting them to risks and liabilities that effectively harm their right to make free expression of works that belong to the public generally and not to a particular copyright holder. The tricky precedent is the Eldred case by which the Court had upheld Congress' power to extend copyright terms beyond those originally permitted when a particular work qualified for copyright protection. That case had been argued primarily on a theory that the "progress clause" of the constitution (that Congress shall have authority to enact copyright laws to promote the progress of the arts, etc. for limited times) prohibited repeated extensions that effectively made the copyright terms permanent and hence not for "limited times" only. The Court had rejected that argument in a 7-2 decision. Here, EFF distinguishes Eldred by arguing that, while Congress may have the power to extend rights of existing copyright holders, it lacks the power to restore to a copyright holder rights to works of authorship that no longer belong to them but are instead in the public domain. That is, such "restorations" do nothing to further the progress of the arts (the constitutional justification by which Congress can enact such laws) and, even if they do, are nonetheless constitutionally defective because they violate free speech rights of those who seek to express themselves in a vibrant public commons consisting of public domain works available to all. The legal nuances here are tricky but it is highly encouraging that the Court decided to grant certiorari in this case. Liberals have long argued for virtually unlimited powers for Congress in enacting statutory laws while conservatives have basically rubber-stamped such broad powers when it comes to expanding IP laws and the Court's factions have tended to follow these broader trends. In a digital age, this means basically that those who can "persuade" Congress to enact pet legislation favoring their commercial interests have an open ticket to extend their protections far beyond what was properly intended by copyright laws, among others. Perhaps this case will begin to draw a line or two that says, "enough is enough." It will be interesting to see it play out. Kudos to EFF for being at the forefront of this fight.
- Symmetry 16y ago

166 points by grellas 16y ago

D3lt4 16y ago

If this passes, I could easily see this abused.

jerf 16y ago
"If"? It went into effect January 1st, 1995: http://en.wikipedia.org/wiki/Uruguay_Round_Agreements_Act http://en.wikipedia.org/wiki/Uruguay_Round_Agreements_Act I was surprised by that date too. I know things take time to work through the courts, but wow. Apparently the case was originally filed in 2001.
- _delirium 16y ago
  The timeline seems to be something like: 2001: filed in district court 2002: put on hold pending Eldred v. Ashcroft 2003: reactivated with amended complaint 2004: district court denies gov't motion to dismiss 2005: district court grants gov't summary judgment 2006: appeal briefed/argued in circuit court 2007: suit partly reinstated by circuit court 2008: circuit court denies gov't petition for rehearing 2009: district court now rules in favor of plaintiffs 2010: circuit court now reverses, dismissing suit after all 2011: supreme court agrees to hear the case The main weirdness is that each side has won once in each of the two courts, so it's made a bunch of trips back and forth. That and getting tied up with Eldred v. Ashcroft for 2 years at the start.

dpapathanasiou 16y ago

And who would wind up owning those copyrights?

dpapathanasiou 16y ago
Not sure why the negative reaction, but it's a serious question. If pd copyrights revert, and the estate is not clear or no longer in existence, what happens then? A feeding frenzy of copyright trolls, or are there futures somewhere, in anticipation of this happening?
- ig1 16y ago
  It goes to the next-of-kin, regardless of whether they know about it or not. Depending on jurisdiction if there's no next of kin ownership may transfer to the government.
Symmetry 16y ago
Given that these are all works in copyright _somewhere_, you presumably just have to look at who the copyright holder is in the jurisdictions where the works have been in continuous copyright.
njharman 16y ago
Who would own derivative works made while it was in public domain? I create a derivative work (compilation of my favorite chapters from X PD books, including much new commentary from me). The copyrights to that belong to me (in US at least). Then all of the sudden those X PD books are now copyright by X new/previous holders. What a cluster fuck. Make bunch of lawyers rich arguing over it though.
- _delirium 16y ago
  That's part of the case, if I understand it: some of the plaintiffs are publishers who published sheet music that was at the time in the public domain, but was then re-copyrighted, forcing them to pull those publications. What unfortunately doesn't seem to be part of the case, but would make for an even stronger plaintiff (at least rhetorically), would be an orchestra that recorded a public-domain work but then found itself unable to distribute its own recording, once it was re-encumbered.
Natsu 16y ago
If the stuff was out of copyright, they would revert to the public domain in the US (in other countries, the copyright status would remain unchanged). In short, no one would end up owning the copyright for works where copyright has expired. That's kind of the problem here. People made derivative works of out-of-copyright materials that they wholly owned. Then Congress revived some zombie copyrights and threw everyone into limbo.

haberman 16y ago

Larry Lessig wrote a great article about Eldred v. Ashcroft, which he called "The Big One," since it was challenging the power of congress to keep extending copyright terms as they have been continually since the beginning of the 20th century. Lessig lost the case, which was a crushing defeat to him because he believes that with the right strategy it could have been won. http://www.legalaffairs.org/issues/March-April-2004/story_lessig_marapr04.msp http://www.legalaffairs.org/issues/March-April-2004/story_le... Lessig says that his mistake was framing the case around a somewhat abstract argument: earlier cases like United States v. Lopez (1995) had found that when the Constitution grants congress an enumerated power, that power must be interpreted in a way that makes it limited. The theory was that if congress could keep extending the term of copyright whenever more works were about to fall into the public domain, their power over copyright terms was effectively unlimited. It seemed like such a simple, watertight argument and the Supreme Court had bought it recently for other cases. Lessig made this argument the center of his case, and redirected every line of questioning with the Supreme Court justices back to this theory. When Justice Kennedy asked if there was any actual harm in practice, Lessig answered: "Justice, we are not making an empirical claim at all. Nothing in our copyright clause claim hangs upon the empirical assertion about impeding progress. Our only argument is, this is a structural limit necessary to assure that what would be an effectively perpetual term not be permitted under the copyright laws." The justices wanted to see the actual harm, but Lessig only gave them an abstract argument. This is unfortunate because Lessig has made an entire career out of describing the benefits of "Free Culture." The EFF is surely aware of Eldred and its unfortunate outcome, and it appears that their strategy is much more focused on showing the actual harm: "In their briefs, both Mr. Golan and the Internet Archive pointed out that allowing Congress to remove works from the public domain inserts potentially paralyzing uncertainty to the system and harms people’s First Amendment rights to receive and share information. These concerns are even more pronounced now in light of technologies that make sharing and storage more accessible, and allow important institutions like the Internet Archive to thrive."

tokenadult 16y ago
Lessig made this argument the center of his case, and redirected every line of questioning with the Supreme Court justices back to this theory. As a lawyer who used to be a judicial clerk for an appellate court, and who has heard many oral arguments before that appellate court, I can't believe that Lessig would muff up on this basic issue of legal argumentation. Argue your preferred theory, sure, but also go along with any hints the court gives you in its order calling for review of the case or in oral argument about what alternative theory to use to PERSUADE THE COURT. The lawyer's duty to the lawyer's client is to win the case, after all, and especially if you have any factual basis for saying that a particular appellate decision would result in actual real-world harm, in addition to being inconsistent with sound abstract legal principles, SAY SO. I'm glad to see that Lessig is forthright about acknowledging his mistake, and I wish him well the next time he has opportunity to argue the issues dearest to this heart before an appellate court.

ylem 16y ago

This is rather scary--How does this effect public domain code? For example, if I release some public domain code, can someone else copyright it with a minor variation and then stop me (and others who use the code) from using the original code?

michael_dorfman 16y ago
No. Not a chance. This is not about things that authors have "released" to the public domain, but about works whose copyright expired in the US, but not in Europe, before the copyright lengths were aligned. No one is suggesting a general principle whereby one could go about copyrighting random works from the public domain as a matter of course.
__david__ 16y ago
In the US you can't put your code into the public domain. Every work you produce is copyrighted and while you can assign copyright to someone else, you can't "remove" it from a work. The only way for something to become public domain is for the copyright to expire (which is practically never at this point).
- timwiseman 16y ago
  you can't "remove" it from a work. I am not a lawyer, but I believe you are mistaken. In the US, so long as your are the legitimate holder of the copyright you may voluntarily waive all rights and surrender the work to the public domain. You may also user certain licenses such as those proposed by the Creative Commons which waive most rights without actually releasing it to the public domain. Certain other countries are slightly different in that they recognize "Moral rights" that are perpetual and unwaivable.
- anigbrowl 16y ago
  Not so - you just have to make an overt statement that you are abandoning your rights. For example, I hereby waive any and all copyrights in this Hacker News comment, now and forever. Enjoy! See paragraph 22 in this entertaining and interesting opinion about the copyright status of user-created videogame levels for a more detailed explanation; as far as I'm aware nothing has changed since then: http://ftp.resource.org/courts.gov/c/F3/154/154.F3d.1107.html http://ftp.resource.org/courts.gov/c/F3/154/154.F3d.1107.htm...

rflrob 16y ago

As much as this does seem like a bad bill, Congress is specifically prohibited from passing ex post facto laws, so at the very least, "infringing" copyrights that were later de-public domain-ed shouldn't be a violation. It doesn't seem like EFF's statement that "those who have used the works could now be required to pay hefty license fees" could possibly be constitutional, although the fact that they couldn't use them in the future without paying fees is a shame.

grellas 16y ago

The legal argument in this case is twofold: (1) that Congress lacks the constitutional power to enact a copyright statute that does not in fact work to promote the progress of the arts, etc.; and (2) that the particular enactment here - taking works that were already in the public domain and conferring upon them ex post facto copyright protection - violates the free speech rights of individuals (including libraries and other repositories of public-domain works) by subjecting them to risks and liabilities that effectively harm their right to make free expression of works that belong to the public generally and not to a particular copyright holder. The tricky precedent is the Eldred case by which the Court had upheld Congress' power to extend copyright terms beyond those originally permitted when a particular work qualified for copyright protection. That case had been argued primarily on a theory that the "progress clause" of the constitution (that Congress shall have authority to enact copyright laws to promote the progress of the arts, etc. for limited times) prohibited repeated extensions that effectively made the copyright terms permanent and hence not for "limited times" only. The Court had rejected that argument in a 7-2 decision. Here, EFF distinguishes Eldred by arguing that, while Congress may have the power to extend rights of existing copyright holders, it lacks the power to restore to a copyright holder rights to works of authorship that no longer belong to them but are instead in the public domain. That is, such "restorations" do nothing to further the progress of the arts (the constitutional justification by which Congress can enact such laws) and, even if they do, are nonetheless constitutionally defective because they violate free speech rights of those who seek to express themselves in a vibrant public commons consisting of public domain works available to all. The legal nuances here are tricky but it is highly encouraging that the Court decided to grant certiorari in this case. Liberals have long argued for virtually unlimited powers for Congress in enacting statutory laws while conservatives have basically rubber-stamped such broad powers when it comes to expanding IP laws and the Court's factions have tended to follow these broader trends. In a digital age, this means basically that those who can "persuade" Congress to enact pet legislation favoring their commercial interests have an open ticket to extend their protections far beyond what was properly intended by copyright laws, among others. Perhaps this case will begin to draw a line or two that says, "enough is enough." It will be interesting to see it play out. Kudos to EFF for being at the forefront of this fight.

Symmetry 16y ago