How The Supreme Court Helped Stomp Out The Public Domain

from the sad-things dept

We already wrote about how the Center for the Study of the Public Domain recently published their list of things that should have entered the public domain in the US this year, but didn’t. But that’s not the only reason to lament. 2012 was particularly painful for the public domain for a separate reason, as the Center noted in a lament about the shrinking public domain, with a harsh, but completely justified, condemnation of the ridiculous Supreme Court decision in the Golan case, which tragically was decided the very same day as the SOPA/PIPA protests. Just as the public was telling DC the importance of not strengthening copyright law, the Supreme Court announced that there was no problem at all with Congress taking works out of the public domain and putting them back under copyright by force.

This decision marked a significant departure from the “bedrock principle” that once works enter the public domain, they remain there, free for anyone to use and build upon. The law at issue in Golan – Section 514 of the Uruguay Round Agreements Act – “restored” copyright to foreign works that had entered the American public domain for any of three reasons: the author failed to comply with copyright formalities, the U.S. did not have copyright relations with their country of origin at the time of publication, or they were sound recordings fixed before 1972. Golan was different from Eldred because while the works in Eldred were on the brink of entering the public domain, the works at issue in Golan were already in the public domain, and conductors, educators, film archivists and others were legally using them. In upholding the law, the Golan majority explicitly endorsed the position that the public has no rights to the public domain. None. Under U.S. law as declared by the Court in this case, copyright is now officially “asymmetric.” While those who have copyrights enjoy vested, legally protected rights, “[a]nyone has free access to the public domain, but no one, after the copyright term has expired, acquires ownership rights in the once-protected works.” The majority could not seem to imagine that the public had rights other than “ownership” over a free, collective culture. In a dissenting opinion, Justices Breyer and Alito asked “Does the [Constitution] empower Congress to enact a statute that withdraws works from the public domain, brings about higher prices and costs, and in doing so seriously restricts dissemination, particularly to those who need it for scholarly, educational, or cultural purposes – all without providing any additional incentive for the production of new material?” Their answer was “No.”

We were just discussing recently if the government taking away copyright could be considered an illegal “takings” issue under the Constitution. For those who support such an argument, I can’t see how they can, at the same time, then argue that works seized from the public domain and locked away under copyright aren’t a similar “taking.” And, yet, the Supreme Court basically argued that Congress can take away the public domain at will. This is horrifying for a variety of reasons:

What are the limits on this decision? Could Congress recall the works of Shakespeare, Plato, Mozart and Melville from the public domain, and create new legalized monopolies over them? It is hard to imagine anything more contrary to the First Amendment – would privatizing Shakespeare by government decree abridge freedom of speech? – or to the attitudes of those who penned the Copyright Clause that limits Congress’s power to create new exclusive rights. Yet if one reads Golan, one searches in vain for any limiting principle on Congress’s actions. In this decision, Justice Ginsburg’s majority opinion effectively denies the public domain any meaningful Constitutional protection. Under the U.S. Constitution, says this case, the public domain is “public” only by sufferance. It may be privatized at any moment, at the whim of the Congress and without violating the Bill of Rights.

In our opinion as legal scholars, this decision is shockingly cavalier in its dismissal of the importance of the public domain to free speech and to the progress of science and culture. It is also, again in our opinion, unsupported by the text, structure and history of the Constitution. Indeed, it seems flatly contrary to the dictates of the First Amendment and the limitations imposed by the Copyright Clause. Yet its message, however lamentable, is clear. If the public domain is to be protected in the United States, it is not going to be through the Constitution, but through reasoned argument, democratic pressure and legislative action. The public domain will be “public” only so long as the public demands it.

And this is one of the many reasons why it’s important for the public to understand the importance of this stuff. It’s become obvious that Congress and the Supreme Court don’t understand it at all.

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Comments on “How The Supreme Court Helped Stomp Out The Public Domain”

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Lowestofthekeys (profile) says:

I’m gonna go ahead and channel OOTB…

“Mike, you and your goon squad of pirateers are all for pirating pirate stuff away from content creators! It’s immoral to deprive copyright holders of those sweet sweet green abstractions…but also, this is the law and it’s impeding on the rights of public is perfectly fine too!

In other words, whatever argument helps further my ego crusade!”

Applesauce says:


“It’s become obvious that Congress and the Supreme Court don’t understand it at all.”

This statement is not obvious at all.
In the case of Congress, the overriding principle (which IS obvious to some) seems to be that lobbyists, campaign contributions (bribes) decide what laws are enacted. Congress may well understand this “stuff” and its importance very well, but just doesn’t care about the harm to the public.

People seem to think the courts are above such considerations as bribery, favoritism and prejudice, but evidence for their honesty and respect for the constitution is not readily apparent.

Anonymous Coward says:

Can someone clue me in?

I have a question that has been nagging me, no end. According to the Supreme Court, corporations are people entitled to the right of free speech. So what’s stopping Disney or any studio for that matter to just sit on copyrights indefinitely since they cannot die and will never expire? Or am I over-simplifying it?

Anonymous Coward says:

Re: Re:

I don’t think “Communism” means what you think it means. Copyright is more like feudal land grants than collective ownership of the means of production.

The only thing communist about copyright is that it’s stated purpose is to increase the volume of creative works that cannot be owned by anyone but can be accessed by everyone.

jameshogg says:

Re: Re: Re:

Well copyright is what causes the destruction of many markets that would have existed without it. And the government backs this destruction, while corporations are the leaders who redistribute content by force in a way that is supposedly fair for everyone. Sounds pretty Communistic to me. And all under the baseless accusation that artists would not get incentives otherwise.

I just find it fascinating because someone in my position is the one who often gets accused of being a Communist, while Copyright is clear much more Communistic with its market destruction. The free market has a great potential to show methods of artist incentive collection without the need for Copyright, which is making this market less and less free at every turn.

G Thompson (profile) says:

Re: Re:

The following, other than my comment down below (stupid reply link not clicked) could also be of use to anyone wanting a huge amount of reading material in regards to copyright and why once in the public domain it MUST stay in the public domain

Primary sources on copyright from the invention of the printing press (c. 1450) to the Berne Convention (1886) and beyond. via University of Cambridge and UK Arts and Humanities Research Council (AHRC)

[Note: this is a brilliant research tool for any law student or otherwise on how copyright actually came into being and not what the current autocracy want you to think happened. ]

Anonymous Coward says:

i think they do understand it, and fully. what they are really doing is ignoring it so as to be of benefit to private corporations, which was and is not the intention or aim of the Constitution. the public can do nothing, that’s why it was entrusted in the Constitution to protect it. the courts have basically removed that protection, stamped on it then thrown it in the bin. if they thought so little of the Constitution and did not intend to uphold it, they should not have heard the case let alone taken this view and made it law

Anonymous Coward says:

Re: Re:

The linked article chastizes the USSC for “not getting” its assertion about what it terms a “bedrock principle”. Since we are talking about the US and a decision by the USSC, then surely there is something within Supreme Court decisions that so states and upon which the article’s authors rely to make their assertion. To my knowledge there is no legal precedent to the point that “once in the public domain, then always in the public domain”. It does seem intuitive that this is proper, but that in and of itself is not a legal mandate.

Anonymous Coward says:

Re: Re:

How about all common law regarding the Public domain in regards to copyright in EVERY common law country, and also those who come under the Berne convention since 1710

Is that enough cite’s for you?

I Don’t think the US has ever properly ratified or even party to the Berne convention, and then sometimes in only the last few decades did they ramp up the copyright protections in the US beyond what was codified in the Berrn convention. So Why should the courts of the US notice the working principles of other Juristrictions,

G Thompson (profile) says:

Re: Re: Re:

Yes they were especially when looking at such things as “International Copyright Act of 1891 (US)” or “Bilateral treaty between the German Reich and the U.S.A. (1892)”

The Berne convention was ratified in conjuncton with the International Copyright Act (The Chace Act), Washington D.C. (1891) which using it’s full title was ‘An act to amend title sixty, chapter three, of the Revised Statutes of the United States, relating to copyrights’

So therefore the courts of the USA and especially the Federal courts under the auspices of the Supreme Court absolutely do need to conform to the “working principles of other Juristrictions[sic]” in fact there is numerous precedent and comity to support this.

Karl (profile) says:

"Entering" public domain

In the interests of fairness, I have to point one thing out.

The Golan decision did not deal at all with works that entered the public domain. They dealt with works that were never under copyright in the first place.

This is how they got around the “limited times” argument: it didn’t violate the “limited times” part, because there were no “times” in the first place.

The Court probably had no choice but to rule in this manner. If putting already-published works under copyright was unconstitutional, then a whole slew of copyright laws would have been unconstitutional.

That doesn’t mean that the ruling isn’t a bad one. The fact that the laws were retroactive is especially troubling. Generally speaking, ex post facto laws are unconstitutional under Article 1, Section 9. I have no idea how the Golan court got around that.

Nonetheless, the Golan decision did not write Congress a blank check to take whatever it wanted out of the public domain. It is certainly a step in that direction, but that ruling has yet to be made.

Anonymous Coward says:

As an Indian, I’m glad our public domain is enriched every January 1 since our copyright term exists for 60 years after the death of any author (foreign or Indian). This means, and I think I am correct here, that all authors who died in 1951 entered the public domain in India on Jan. 1, 2013.

Here’s a brief list:

Sinclair Lewis
Andr? Gide
Algernon Blackwood
R. H. Barlow
Tadeusz Borowski
Sadeq Hedayat
Lloyd C. Douglas
John Erskine
Robert Walker
Hermann Broch…

Not bad, eh?

Loki says:

We were just discussing recently if the government taking away copyright could be considered an illegal “takings” issue under the Constitution. For those who support such an argument, I can’t see how they can, at the same time, then argue that works seized from the public domain and locked away under copyright aren’t a similar “taking.” And, yet, the Supreme Court basically argued that Congress can take away the public domain at will.

While the Supreme Court can argue what the Constitution does or does not allow, the Declaration of Independence clearly assures us that when the “public domain” is impinged on too severely, the “public” has the right, the authority, and in fact the Duty to restore that domain.

The Constitution, like the Articles of Confederation that governed this nation for the first 11 years before it, is merely a set of guidelines intended to enforce the principles set forth in the founding document. Without adherence to those principles, the guidelines themselves are essentially meaningless. People seem to forget this.

Sabrina says:

Copyright law

Copyright law is to strict. Its seems to me and correct me if I am work that companies seem to have more influence in copyright law than the regular citizen. I think this should change.I started a petition to to any limit copyright. I wish I could limit more than my petition calls for but to limit it more may be harder to do so I would be happy a least to limit it a little.Here is the link the the petition.You can only view it clicking on the link because I need 150 signatures before it can be searchable on the site.

I think copyright limits creativity. If a company like disney owns the rights to a work can it even become public domain as long as the earth last? I don’t like reading of companies and corporations and rich people pushing to get stricter copyright laws and have their copyright last longer. I don’t like the Sonny Bono Act. Why would an author of a work care how long copyright lasts after they die? They can’t benefit from it when they are dead. I want more work in the public domain instead of a copyright monoploy that the greedy can take advantage of.

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