Hollywood Applauds The Destruction Of The Public Domain... Even As Hollywood Exists Thanks To The Public Domain

from the strong-copyright-isn't-what-got-you-here dept

With the Supreme Court hearing the rather important Golan case this week, concerning the ability of the federal government to take works out of the public domain and put them under copyright, there is actually some mainstream press discussion about the public domain. The NY Times is running a great op-ed piece by Peter Decherney, a film studies professor, talking first about how devastating it's been for filmmakers like him to have works they previous relied on in the public domain suddenly shift to being covered by copyright.
In my own field — film — the effects of the 1994 law have been palpable. Distributors of classic foreign films have seen their catalogs diminished. Students can no longer get copies of many films. Archivists have postponed the preservation of important films. And of course filmmakers have lost access to works of literature that they might have adapted and music that might have enhanced soundtracks.

But the key point is made towards the end of the opinion piece, in which he notes the blatant hypocrisy on the part of the MPAA, who filed an amicus brief in the case arguing that we need to pull works out of the public domain to show the world that the US is "a proponent of strong copyright protection throughout the world."
But, as Decherney points out, all of that is hogwash especially since the very same movie industry that's complaining about this has always relied on the public domain as a source for new works:
But history tells a different story. Filmmakers have consistently used public domain works to anchor artistic and technological innovation. In the 1930s, when Walt Disney decided to make one of the first feature-length animated films, he turned to the Brothers Grimm’s version of the tale of Snow White. When asked why he chose that story, Disney explained that “it was well known.” He understood that “Snow White” was a trusted property, and because he knew that at least the story and characters would be familiar to audiences, he could take an artistic risk with the form.

Disney is only the most famous example of a filmmaker who relied on the public domain to expand the art of film. Starting with Thomas Edison in 1910, filmmakers have adapted Lewis Carroll’s “Alice’s Adventures in Wonderland” in movies that have accompanied the transition to feature films, the establishment of the studios, the switch to sound, the introduction of color, the advent of television and the adoption of widescreen aspect ratios.
And yet, now, works that formerly were in the public domain -- and which some people made a business of selling -- have been removed from the public domain and placed back under copyright law that they don't need. This should be seen as a huge problem with the system and the industry.


Reader Comments (rss)

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  •  
    identicon
    Justin Levine, Oct 5th, 2011 @ 2:55pm

    Transcript of the Supreme Court's Golan v. Holder argument.

     

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      Hephaestus (profile), Oct 6th, 2011 @ 8:21am

      Re: Transcript of the Supreme Court's Golan v. Holder argument.

      I totally forgot that this was a first amendment issue.

      googles Amicus Brief to SCOTUS


      ..."Google’s mission overlaps with, and depends upon,
      the core values expressed in and secured by the
      constitutional provisions at issue in this case:
      Article I, Section 8, Clause 8 of the U.S.
      Constitution, which empowers Congress to grant
      limited exclusive rights in order to promote the “the
      Progress of Science and useful Arts,” thereby
      “enriching the general public through access to
      creative works,” Fogerty v. Fantasy, Inc., 510 U.S.
      517, 526-27 (1994); and the First Amendment, which
      guarantees “the freedom of speech,” and “of the
      press,” and “carries with it * * * freedom to listen,”
      Richmond Newspapers v. Virginia, 448 U.S. 555, 576
      (1980), and to “receive information and ideas,”
      Kleindienst v. Mandel, 408 U.S. 753, 762 (1972), and
      “prohibit[s] government from limiting the stock of
      information from which members of the public may
      draw,” First Nat’l Bank of Boston v. Bellotti, 435 U.S.
      765, 783 (1978)." ...

       

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      Anonymous Coward, Oct 6th, 2011 @ 9:02am

      Re: Transcript of the Supreme Court's Golan v. Holder argument.

      I find it kind of sad that they all have to worship at the shrine of precedence. It kind of made me sick to see how both sides spoke of Eldred as if it was the pinnacle of judicial wisdom.

      The government had one case that looks really bad for the good guys. They said that there was a patent owned by Oliver Evans that expired, and then granted a renewal by congressional law. The supreme court in 1815 said that was OK for Oliver to crack down on those that used products that were created during the time that he no longer owned the patent. Without the courage to denounce bad rulings from the past, I don't know how the court can work around that one.

       

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        Justin Levine, Oct 6th, 2011 @ 10:14am

        Re: Re: Transcript of the Supreme Court's Golan v. Holder argument.

        Agreed that its bad precedent. Though if you study the Supreme Court closely, they use precedent very cynically - relying on it when it suits them and they want to validate their personal beliefs through some "objective" matrix, but ignoring it when it gets in the way of the result they want to achieve.

        The difference they can hang their hat on in this instance is that copyright has a direct Free Speech component that patented inventions don't. Therefore, it makes sense to treat patent and copyright differently in this context. As blatantly unfair as it is, putting an expired patent back into protection doesn't stifle speech, whereas putting public domain works back into copyright protection suppresses massive amounts of speech.

        That would be the argument I would make to distinguish the 1815 patent case here.

         

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          wvhillbilly (profile), Oct 6th, 2011 @ 9:44pm

          Re: Re: Re: Transcript of the Supreme Court's Golan v. Holder argument.

          There should be a law against forum shopping. I believe this is how a lot of bad precedents get their start. Look for a judge who will give you just what you want, no matter how unreasonable it is, and, Voila! Bad precedent. And no matter how hard you try, you can't get rid of it.

           

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    Justin Levine (profile), Oct 5th, 2011 @ 2:57pm

    Excpert from Golan v. Holder argument

    Good lord! From pg. 37 of the transcript...

    "CHIEF JUSTICE ROBERTS: General, there is something at least at an intuitive level appealing about Mr. Falzone's First Amendment argument. One day I can perform Shostakovich; Congress does something, the next day I can't. Doesn't that present a serious First Amendment problem?

    GENERAL VERRILLI: I don't think so, Mr. Chief Justice..."

     

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    Justin Levine (profile), Oct 5th, 2011 @ 2:59pm

    Another amazing excert from the Golan v. Holder argument...

    From pg 39-40 in the transcript of oral arguments. I can only shake my head so much here.

    "CHIEF JUSTICE ROBERTS: What about Jimmy Hendrix, right? He has a distinctive rendition of the national anthem, and all of a -- assuming the national anthem is suddenly entitled to copyright protection that it wasn't before, he can't do that, right?...So he is just out of luck? And that's just one example of many, where you take existing works and you have a derivative work or something that is distinctive to you. So those people are just out of luck?

    GENERAL VERRILLI: ...the Copyright Clause already contains very significant accommodations of First Amendment interests. The idea/expression dichotomy, fair use; and -- and that is going to provide -- maybe -- maybe Jimmy Hendrix could claim fair use in that situation...."

     

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      That Anonymous Coward (profile), Oct 5th, 2011 @ 4:39pm

      Re: Another amazing excert from the Golan v. Holder argument...

      via Ouija board?

       

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      Anonymous Coward, Oct 6th, 2011 @ 11:22am

      Re: Another amazing excert from the Golan v. Holder argument...

      'Maybe' in this case translating roughly to 'he could opt to take the case to court when we sue him instead of settling but we'd fuck him right up the ass ten ways to Sunday.' I mean no one with any kind of memory of the history of copyright litigation in this country would think for even a minute that you could record a cover, word for word, of a famous, copyrighted work and either not get sued or get sued and then win. I mean the content industry doesn't even think a few parts of a second, sampled and remixed into an entirely transformative work is 'fair use.'

       

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    identicon
    Anonymous Coward, Oct 5th, 2011 @ 3:01pm

    Public domain theft should be a criminal offense.

     

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    Anonymous Coward, Oct 5th, 2011 @ 3:03pm

    Public Domain:

    THOR 2011 - Nordic THOR legends.
    The Eagle 2011 - Ancient Roman military history.
    Gnomeo & Juliet 2011 - Shakespeare
    Beastly 2011 - Beauty and the Beast
    The King's Speech 2011 - U.K. history.
    Soul Surfer 2011 - Real Life.
    American: The Bill Hicks Story 2011 - Real Life.
    Hoodwinked Too! Hood vs. Evil 2011 - Little Red Riding Hood, Hansel and Gretel.

    There are more, Hollywood just launched in the past years more than a hundred works based on past out of copyright works.

     

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    Anonymous Coward, Oct 5th, 2011 @ 3:05pm

    I guess they are hoping that they will get a law passed to take away even more why else would they keep making more and more movies on old stories?

    Do they know something that we don't?

     

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    Anonymous Coward, Oct 5th, 2011 @ 3:19pm

    inB4

    1. Pirate Mike
    2. freetards/freetardia
    3. "wild west interwebz is over!"
    4. sycophants
    5. weasel wording
    6. FUD
    7. "the party is OVER"
    8. lol this is a tech blog, suuure

     

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      Anonymous Coward, Oct 5th, 2011 @ 3:35pm

      Re:

      Well, well, well... Pirate Mike and his merry band of freetards strike again! The public domain exists solely for the content industry to pull ideas that will not require licensing. What... did you actually think it was for the use of the public? What a laugh! Mike "FUD" Masnick and all of his sycophants have been so busy repainting the wild west of Freetardia with a broad brush that you've all missed the memo explaining that the party is over. No matter what type of spin you add with your disingenuous weasel wording on your so called pirate... err.. tech blog, PROTECT IP will be your undoing. It's time to face the music and realize that all your public domains are belong to us!

      /amidoinrite?

       

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    Anonymous Coward, Oct 5th, 2011 @ 3:33pm

    I see here a whole new scheme to make money :
    1. Get the copyright on a work that will be in the public domain soon
    2. Wait 4-5 years after the work is in the public domain
    3. Get the work out of the public domain
    4. Sue everyone who used the work when it was in the public domain

    GREAT ! :D

     

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    out_of_the_blue, Oct 5th, 2011 @ 4:54pm

    Actually, your title missed a good and valid stab at Hollywood.

    Sure it's "devastating it's been for filmmakers like [Decherney]" WHILE INSIDERS GET A FREE PASS! :
    "Despite their official position in this case, Hollywood producers have long realized the value of the public domain, and they have taken steps to manage the use of the shared resource. The M.P.A.A. continues to maintain a registry in which its members can claim a limited, industry-designated right to public domain works. The registry allows filmmakers to draw from the cultural storehouse of stories and characters without fear of an immediate challenge from their closest competitors."

    And that's why I focus on the corruption of money and cartels, not so much copyright.

     

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      Samuel Abram (profile), Oct 5th, 2011 @ 5:05pm

      Re: Actually, your title missed a good and valid stab at Hollywood.

      >blockquote>And that's why I focus on the corruption of money and cartels, not so much copyright.

      And that's what Larry Lessig is now focused on after being focused on copyright for so long.

       

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      Samuel Abram (profile), Oct 5th, 2011 @ 5:06pm

      Re: Actually, your title missed a good and valid stab at Hollywood.

      And that's why I focus on the corruption of money and cartels, not so much copyright.


      And that's what Larry Lessig is now focused on after being focused on copyright for so long.

       

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        identicon
        Anonymous Coward, Oct 5th, 2011 @ 5:18pm

        Re: Re: Actually, your title missed a good and valid stab at Hollywood.

        Protip, never send your posts to techdirt via automatic weapons.

         

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          The eejit (profile), Oct 5th, 2011 @ 11:36pm

          Re: Re: Re: Actually, your title missed a good and valid stab at Hollywood.

          Eh, SCUD missiles are how I send mine. Much more efficient, if prone to typos.

           

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    Anonymous Coward, Oct 5th, 2011 @ 5:28pm

    I recognize what follows is a bit simplistic, but why is it that one can not steal a work secured by copyright, yet one can steal a work not secured by copyright?

     

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      Anonymous Coward, Oct 5th, 2011 @ 5:36pm

      Re:

      I recognize what follows is a bit simplistic, but why is it that one can not infringe a work secured by copyright, yet one can infringe a work not secured by copyright?

       

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      Samuel Abram (profile), Oct 5th, 2011 @ 5:44pm

      Re:

      Well, if it's not secured by copyright, you're not "stealing" it. So-called Intellectual Property is a different form of property than actual physical property or territorial property. Physical property or territorial property doesn't expire (Physical property can wear out, but it's still technically there). When so-called intellectual property expires, anyone can use it. It doesn't mean the government owns it. It doesn't mean a token-ring or round-robin turn of ownership. It means that anyone can use it for any reason, and can do whatever the hell they want with it. Sell? Sure. Remix? Recycle? By all means, go for it!

      If these works were still under copyright, people wouldn't have these luxuries. That doesn't mean copyright is bad, per se, but that it should be kept in check for going on too long (like forever), and it would be especially dire if works that were already free to reuse and remix were suddenly put back into copyright and we couldn't freely use them anymore.

       

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        Greevar (profile), Oct 6th, 2011 @ 9:00am

        Re: Re:

        All correct, except "intellectual property" is just a semantic weapon wielded by the publishing industry and isn't actually defined in US law as property. In fact, nowhere in the copyright act does it explicitly say that the art you create is your property. It does say the copyright is your property and that copyright applies to your art, but it doesn't say explicitly nor implicitly that it is the exclusive property of any individual. This very important distinction was included to preserve the public domain ownership of all artistic works. It establishes the fact that all works are, by default, the property of the public domain (i.e. everyone).

         

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          Samuel Abram (profile), Oct 6th, 2011 @ 4:17pm

          Re: Re: Re:

          All correct, except "intellectual property" is just a semantic weapon wielded by the publishing industry and isn't actually defined in US law as property. In fact, nowhere in the copyright act does it explicitly say that the art you create is your property.


          Hence why I said "so-called intellectual property".

           

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      Anonymous Coward, Oct 6th, 2011 @ 11:27am

      Re:

      Stealing in this second case actually refers to taking the rights themselves away from someone. Stealing in the first case refers to infringing. Neither is literally stealing but it's a more apt analogy in the second case because someone is actually loosing something that someone else is gaining.

       

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        Greevar (profile), Oct 6th, 2011 @ 2:23pm

        Re: Re:

        What have they lost? What is it that they had that they no longer had? The answer is nothing. Nothing was lost, because by infringing the copyright you've created more. If you break your cookie in half, give it to me, and both halves turn into two whole cookies, have either of use stolen a cookie? Has the baker lost anything they already had? No, because you've added something, not taken it away. That's why theft doesn't, and never will, apply to copyright infringement.

         

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          Anonymous Coward, Oct 6th, 2011 @ 2:36pm

          Re: Re: Re:

          why is it that one can not steal a work secured by copyright, yet one can steal a work not secured by copyright?
          Stealing in this second case actually refers to taking the rights themselves away from someone.
          What have they lost? What is it that they had that they no longer had?


          They lose the right to perform the work. They lose the right to prepare and sell derivative works.

          If someone infringes copyright (as in the first case), it's not stealing, because the copyright holder loses nothing.

          If congress takes something out of the public domain and gives it to one party, everybody else loses something, and that's why it's stealing.

           

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    Anonymous Coward, Oct 5th, 2011 @ 7:13pm

    Copyright is not property


    I recognize what follows is a bit simplistic, but why is it that one can not infringe a work secured by copyright, yet one can infringe a work not secured
    by copyright?





    The reason is that copyright is not property preexisting independent of positive law, but merely an artificial construct created by the state's positive law.

    The problem for the copyright maximalists arise when they have to justify copyright as analogous to property in light of the public domain.

    If copyright is property, fair use and the public domain necessarily violate the property right of the copyright holder.

    But since copyright law without these inconsistencies and limitations would be overwhelmingly rejected by the majority, it's a good reason for not buying the argument that copyright equals property, with all its moral implications.

    Another deception is claiming that copyright is a human right.

    But again, if copyright is a human right, both the public domain and any
    uncompensated copying without permission necessarily infringes on the "human right" of the copyright owner.

    I suspect that most copyright maximalists really don't like the public domain, and most of them claim that the public domain is really no right.

    Strong proponents of harsher copyright are therefore copyright maximalists. They don't really argue from any point of consistency but merely defend expanding copyright as a oneway street.

     

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    Anonymous Coward, Oct 6th, 2011 @ 3:49am

    Nothing to hide

    When I read this article, my mind goes out to all the people that always claim they "have nothing to hide".

    There are so many arguments why everyone has something to hide. One of them is caused and enforced by ridiculous rulings like these, that what you legally own today can be illegal tomorrow.

     

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    hmm (profile), Oct 6th, 2011 @ 5:14am

    can we just get it over with?

    I say they get to pull EVERYTHING back into copyright no matter how hold.

    THEN when someone tries to remake something by shakespeare or play beethoven they get sued....

    Very quickly copyright in its entirety would collapse, rather than the slow strangulated death we have now....

     

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    hmm (profile), Oct 6th, 2011 @ 5:20am

    possible solution

    Destroy the "public domain"

    have ALL copyrights return to the government after 5 years.

    Means its still "copyright protected"

    Put a limit on public domain use...if you make more than $5 million from a single item then you gotta pay a tax to the government........

    Can you hear the sound of hollywood execs crying? (and MPAA shills tying nooses?)

     

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    hmm (profile), Oct 6th, 2011 @ 5:20am

    that means

    basically public domain continues to exist but the government can sue "big players" making more than 5mil and get some additional tax whilst leaving the little guys alone.

     

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    jduhls, Oct 6th, 2011 @ 6:49am

    "This should be seen as a huge problem with the system and the industry."


    ...not to mention, our cultural heritage. But I guess there are priorities ($$$).

     

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    Tobin, Oct 6th, 2011 @ 7:20am

    Both sides of this have valid arguments and I am sure that the solution exists somewhere in the middle.
    What is being debated here has everything to do with money and not much to do with culturally enriching society as a whole.
    It all comes down to who can afford to spend the most money to press the argument.

    To bad that this is a death spiral for the industry. Spend more money to lobby, sue, lockup the work, only to have to seek even more protectionism in order to cover the money spend originally.

     

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      Hephaestus (profile), Oct 6th, 2011 @ 7:59am

      Re:

      Yeah, isn't it great, the spending and revenue streams will cross in the next couple years. As they said in ghost busters never cross the streams ...

       

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    AJBarnes, Oct 6th, 2011 @ 7:51am

    Both sides of the apple

    Isn't it Disney who rammed through legislation to extend copyright because Mickey Mouse was about to go Public Domain? So they built their business on public domain, and fight tooth and nail to prevent their material from going to Public Domain. Hmmm...

     

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    waitForIt (profile), Oct 6th, 2011 @ 8:09am

    Theft!

    And there you have hit, a perfect example by definition. Absolutely no sharing nor downloading involved. Stealing is what it is.

    Media drug dealers. Let the prohibition continue!

     

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    wvhillbilly (profile), Oct 6th, 2011 @ 9:36pm

    End of the public domain

    It's all about greed and always has been. The entertainment industry isn't satisfied with just their share, they want it all. Pretty soon they'll be suing us for infringement for having friends over to watch a movie (publicly displaying) and/or for playing a DVD more than one time. And the term of copyright will be forever.

    Greed knows no limits. It is insatiable. It cannot be satisfied. The more a greedy person gets, the more he wants. J. Getty I think it was, then the richest man in the world, was once asked, if he could have anything in the world he wanted, what would it be? His reply:"More money."

     

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