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.


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    vivaelamor (profile), Oct 22nd, 2010 @ 4:08am

    Typo?

    "this is a copyright violation" (fourth paragraph)

    I think you mean 'this is a First Amendment/free speech violation'.

     

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    Ed C., Oct 22nd, 2010 @ 5:03am

    But I thought the public domain was just some fairytale those crazy libertarians keep telling us...or at least it will be if those in power get their way. (and by 'power', I don't mean the government.)

    I'm glad this issue FINALLY has been taken up by the Supreme Court. Unfortunately, I don't know how the current justices have ruled on such issues, so I couldn't even speculate how this is likely to turn out.

     

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      Chris Rhodes (profile), Oct 22nd, 2010 @ 7:31am

      Re:

      But I thought the public domain was just some fairytale those crazy libertarians keep telling us

      "Intellectual Property" law is actually a big area of contention in libertarian circles. I happen to be a libertarian who doesn't believe in intellectual property, so don't paint us all with the same brush. :)

       

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      tracker1 (profile), Oct 22nd, 2010 @ 9:17am

      First Amendment after Copyright provision

      It seems to me that Amendments (being an addition/adjustment to) the original constitution should take precedent over the original form... IIRC, one of the arguments previously was that the copyright provision was more important than the First Amendment, but being that the amending of the Constitution itself is meant to change its' meaning that the First should take precedent over the body.

       

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    out_of_the_blue, Oct 22nd, 2010 @ 5:38am

    Since they already dodge the ex post facto clause,

    they'll just demonstrate lawyerly skills of "creating" whatever "law" serves corporate interests. Time and again perfectly obvious cases go into the Supreme Court and emerge wrongly decided on thin, irrelevant bases, to the destruction of human rights, but nearly always to further corporate rights. Not all that hard to predict outcomes: the tortured "logic" used is the only surprise. Only recent case that's surprising is the 2nd Amendment decision, but probably has a poison pill in it that we just haven't figured out yet.

    Anyhoo, betcha anything with "public" in it gets axed.

     

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    Gabe, Oct 22nd, 2010 @ 5:55am

    Life + 70 is not lawful

    I never have understood how Congress thought it was lawful to extend copyright to life+70years. How in anyway is paying the grandchildren of popular artists and creators royalties on works that they may have only seen after the original creator had passed away inspire them to create more works? As has been said before it makes as much sense as the children of construction workers looking for payments on work their parents did 50 years ago. It does nothing to inspire them to create more homes. It encourages them to sit back and watch the money float in on work their parents did...

     

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      Greevar (profile), Oct 22nd, 2010 @ 6:26am

      Re: Life + 70 is not lawful

      I see this the same way. Why in any industry should someone get paid for the rest of their life for a few thousand hours of work? If I asked my boss to pay me for the rest of my life while I go home and play video games, he'd either fire me or laugh in my face.

      The truth of the matter is, there should be no copyright. If you want to get paid for your work, get paid for the creation of it, not the sale of individual copies. Landscapers don't get residual pay from their work. They estimate the project costs and make an agreement with the client on what they will do for them. The landscaper gets paid for the job and the client can do whatever the hell he wants to it after the fact without paying residuals every time his neighbors see it.

       

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    Anonymous Coward, Oct 22nd, 2010 @ 6:16am

    Once again the courts and misinformed judges have denied us justice.

     

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    Laurel L. Russwurm (profile), Oct 22nd, 2010 @ 7:45am

    the real issue

    Paying the creator (or even paying the progeny) for life+70 or whatever is a red herring. It simply spreads the blame. Although creator/descendents are nominally the beneficiary of life+70 (or whatever), it quickly becomes apparent that they receive the least of what's on offer.

    First at the trough of royalty is always the distributor. (When you get right down to it, distribution is really what the Movie and Music and Publishing companies brought to the table.)

    Next in line are the other parties that have dealt themselves in, including governments, copyright collectives and rights organizations.

    The leavings go to the creators/heirs. By this point there is precious little left in the copyright trough, with the lion's share going to creators on the very top of the heap. For most creators, royalties are as much of a myth as an afterlife, and about as difficult to prove.

    I'd expect it is even easier to avoid paying progeny than the original artist. And what happens when there are no heirs?

    The corporations who extort copyright from creators (in exchange for distribution) do everything in their power to remit as little of the payment due to the creators as possible.

    Unlike frail humans who live for only a short while, corporations are immortal. It is in corporate best interests to have nothing ever go into the public domain because the public domain offers competition. Even better for corporate interests is to remove work from the public domain. And the best way to do that is by affixing their own brand to it.

     

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      Gabe, Oct 22nd, 2010 @ 8:23am

      Re: the real issue

      I see your point. However, I don't think you refute my claim at all (I don't think you disagree with my point of view, you just see a larger picture then I describe.)

      My description is based upon the author because the law is centered around the author's point of view (life span), and excludes the true puppet masters because the law makes no mention of them. I agree that corporations are the true masters behind this debacle. However, as I see it, the law is between the general public and the author. All outside interests should be eliminated from the negotiation. To expound on this point I took the life+70 rule to the nth degree.

      We need to have someone set the lifetime of copyright back to what will actually benefit the general public while still compensating the authors for their work. Leave the distribution company's interests out of this. They are not the 'creator' nor do the represent the general public. 14 years sounds sane, but I have read articles that would make 7 years a much more beneficial lifetime. After 7 years the author (not the distributor) has been granted about as much revenue off of his/her copyright as he/she will reasonably receive, and it should move to the public domain.

       

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        Laurel L. Russwurm (profile), Oct 22nd, 2010 @ 10:12am

        Re: the real issue

        I realize many people think this, but it is incorrect. You do not have to be the creator to own the copyright.

        Authors have traditionally signed some or all of their rights over to the corporate distributor. When a musical act achieves the 'holy grail' of being signed by one of the big 4, the contract invariably transfers ownership of the copyright from the actual creators to the corporate entity. (Historically the only time this does not happen is when the musical act is very big and very famous. Today the Internet means any artist can hang out an Indie shingle.)

        I'm not an IP lawyer so my language may be imprecise, but as I understand it, this legally deems the corporation to be the author.

        How do commercial movies work? Or TV series? In many cases a corporation/distributor provides funding and distribution in exchange for all or total ownership of the copyright, but most importantly total control of the collaborative work.

        The basic thinking is that the one making the payment owns the thing. Which means many of the actual collaborative creators cannot legally upload content they have creatively contributed to on their own websites without securing permission from the "rights owner".

        It is bizarre that corporate entities can exert legal control over the tangible results of human creativity. The only kind of assignment of copyright that should be permitted under law should be licensing for specific terms.

        If we were to look at the idea of copyright existing to benefiting the author, 14 years is far too long. Why don't we reduce it to 2 years, since the Internet makes near instantaneous distribution possible.

         

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    JustSomeGuy, Oct 22nd, 2010 @ 8:43am

    "saying that the government had plenty of good reasons to pull works from the pubic domain, and thus, there was no First Amendment violation" - wasn't the whole point of the Constitution to protect the people from the government?

    So how can the fact that the government has a good reason to do something automatically mean the first amendment isn't being violent? I'm sure the government has a good reason to put people in jail without due process as well but I'm pretty certain they'd get into trouble for that (Gitmo notwithstanding).

     

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    JustSomeGuy, Oct 22nd, 2010 @ 8:45am

    Damn submitting before previewing. Obviously I meant "violated", not "violent". Could the first amendment even *be* violent? :-)

     

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    Anonymous Coward, Oct 22nd, 2010 @ 9:16am

    Interesting

    If the Supreme Court finds in Golan's favor, I'm curious what effect it would have on the myriad of state laws that added copyright to audio recordings that were in essence, in the public domain.

     

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    Anonymous Coward, Oct 22nd, 2010 @ 9:02pm

    This is a highly unusual case because the underlying purpose of the US legislation was directed to certain works that were created outside the US.

    Pre-1978 US law had strict formality requirements that if not met meant that a work entered the public domain. The rest of the world (principally Europe) had an entirely different approach that was devoid of the formalities required by US law.

    This legislation was an attempt to somehow merge two entirely different systems of copyright law, an incredibly difficult task.

     

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