It appears we are speaking at cross purposes. I will give you the benefit of the doubt, and assume that this is because I didn’t make myself clear (rather than the easier explanation that you are just an anti-Techdirt reactionary).

There are undoubtably certain situations in which the “takings clause” would apply to copyright. Say, for example, that in 2003, the state of New York decided it was “unfair” that the royalties to Beatles songs went to the Michael Jackson estate, and not to Paul McCartney. That state then declared that any royalties that accrued in their state were the property of Sir Paul.

Would that implicate the takings clause? Almost certainly, it would. I say “almost,” because there would be so much wrong with that New York law, that the clerk typing a transcript of the case would collapse from carpal tunnel syndrome before the Fifth Amendment was even mentioned.

So, yes, if the Government acted contrary to the statutory laws passed by Congress in removing a copyright from its owner, without compensation, it would certainly not pass Fifth Amendment muster.

Of course, that’s not even close to anything I was talking about.

Here is exactly what I asked:

If Congress decided to do away with copyright altogether, and not compensate copyright holders in any way, would it violate the Fifth Amendment?

Notice that the word “retroactive” is nowhere to be found. And without the retroactive aspect of Congress doing away with copyright, the answer to that question is an unequivocal “no.”

The 1909 Act did away with copyright proetection for fine arts under the 1870 Act. The 1976 Act enacted “reversion rights” for artists, which previously did not exist, and “took” the copyrights away from what was previously the rightful owners of those copyrights. It officially codified the “fair use” doctrine, under which copyright holders lost all “property” rights for uses that were determined to be fair use. Sony v. Universal expanded the uses that were considered fair use. And, of course, when Congress enacted its first copyright clause, under the condition that one seeking such protection follow certain statutory proceedings, nobody who held a copyright when that statute was enacted enjoyed any sort of copyright protection unless they complied with federal statutory preceedings, regardless of whether they followed state statutes.

Not one of these developments even suggested a “taking clause” claim, much less was decided to conflict with it. It is not even remotely controversial to claim that the Fifth Amendment is irrelevant, if Congress decides to define the scope of the limited monopoly known as copyright, without retroactively changing that scope.

And, as I said before, this is not an academic question. The RIAA has already challenged “reversion rights” under the takings clause, though it was in regards to “Gap Grants” (it’s from that analysis that I quoted Marybeth Peters.) As 2013 approaches, I fully expect some RIAA lawyer to claim that “reversion rights” are invalid under the takings clause, even though they only apply to copyrights granted after the statute was enacted. I fully expect this particular argument to fail.

Now, despite me not mentioning it, you have been focusing on one question: what if Congress did away with (some or all) rights in copyright, and applied them to still-active copyrights? That is, what if Congress changed the scope of copyrights retroactively?

Though it bears absolutely no relevance to the point I was making, it is certainly an interesting question. I say “interesting,” because the clerk typing a transcript of all relevant cases would have time to step outside the courtroom for a smoke break.

Simply put, no court has ever held that retroactive changes to copyright law passed by Congress involve the takings clause. The court in Roth v. Pritikin raised the possibility that it might be the case, but that was dicta, and they expressly said that they would not decide on that possibility.

Certainly, retroactive extensions to copyright law have not been held to conflict with the takings clause, as I’m sure you know.

Additionally, such changes have happened before, at least as far as I can tell. I alreay mentioned the undoing of copyright protection for “models or designs intended to be perfected as works of the fine arts,” cited in Mazer v. Stein. The 1909 Copyright Act did away with the protections afforded these works in the 1870 Act (though they were reinstated a couple decades later).

You asked: “when they changed the law, did they actually take away rights retroactively that had been granted? If not, no takings.” Well, I have just read the 1909 Act in its entirety, and I see no sort of “grandfather clause” for these types of works. So, it appears that, yes, Congress did actually take away rights retroactively that had been granted. Former copyright “owners” of those works suddenly found themselves without any sort of “property” whatsoever. All without implicating the Fifth Amendment.

Still, that Act was not challenged in court, so there is no definitive case on the matter. That is why the aforementioned Register of Copyrights, Marybeth Peters, says flat out that “the Office does not know of any cases in which courts deemed Congress’ copyright revisions to be takings.”

And, once again, this is not a theoretical concern. Many, many people (both in the government and the publishing industry) want “orphan works” legislation to pass. If Congress was not allowed to pass retroactive changes to copyright under the Fifth Amendment, orphan works legislation would be unconstitutional on its face. (The law would necessarily rob the existing copyright holder of their “property rights,” and since the holder by definition cannot be found, he or she certainly cannot be compensated.)

I seriously doubt that a single member of the Supreme Court would hold that to be true.

Would you? I asked before, but you never answered.

What I can’t stand is the, “I know what I’m talking about and you don’t” attitude that infiltrates all of your legal pronouncements.

You and me both, buddy.

You’re just some anonymous coward who’s afraid to put a name to their posts. I have absolutely no evidence whatsoever that you’re any more versed in the law than your average citizen (including me).

I never claimed I was a constitutional lawyer or anything. I never claimed to be any sort of lawyer at all. But even I can see that you are the one with an “I know what I’m talking about and you don’t” attitude that “infiltrates all of your legal pronouncements.”

If an idiot like me can see it, I’m guessing that everyone reading these comments can see it, too. That’s quite an attitude, considering that you’re no more reputable as a legal expert than your average /b/tard.