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The Courts United States

US Supreme Court Upholds Removal of Works From Public Domain 380

Posted by samzenpus
from the taking-it-back dept.
langelgjm writes "While much of the web is focused on the SOPA and PIPA blackout, supporters of the public domain today quietly lost a protracted struggle that began back in 2001. The Supreme Court, in a 6-2 decision, rejected the argument that Congress did not have the power to convey copyright upon works that were already in the public domain. The suit was originally filed to challenge provisions that the U.S. adopted when signing the TRIPs agreement. Justices Breyer and Alito dissented, arguing that conveyed copyright on already existing works defied the logic of copyright law. Justice Kagan recused herself. The text of the opinions is available here (PDF)."
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US Supreme Court Upholds Removal of Works From Public Domain

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  • by wealthychef (584778) on Wednesday January 18, 2012 @08:02PM (#38743150)
    this court won't do to rob ordinary citizens of property?
  • Terrible (Score:5, Insightful)

    by jhoegl (638955) on Wednesday January 18, 2012 @08:02PM (#38743154)
    So, if Congress so wishes... they can apply copyright to anything in the public domain.
    Shakespear here we come!
  • Fifth Amendment? (Score:5, Insightful)

    by Hatta (162192) on Wednesday January 18, 2012 @08:04PM (#38743180) Journal

    The fifth amendment prohibits the taking of private property for public use without just compensation. We need an amendment that prohibits the taking of public property for private use without just compensation.

  • by Anonymous Coward on Wednesday January 18, 2012 @08:10PM (#38743238)

    Not when it benefits the rich and powerful.

  • by esocid (946821) on Wednesday January 18, 2012 @08:10PM (#38743242) Journal
    It's sort of strange that of all the international treaties, this is the one that is going to be enforced in the US. /not that I agree with it at all.
  • Re:Terrible (Score:5, Insightful)

    by jd (1658) <imipak AT yahoo DOT com> on Wednesday January 18, 2012 @08:11PM (#38743248) Homepage Journal

    Which, in effect, means there is no public domain, since this means there is retroactive copyright. Which is rather a frightening concept given how much has been put out in the public domain for the express purpose of nobody owning it.

  • Congratulations... (Score:5, Insightful)

    by His Shadow (689816) on Wednesday January 18, 2012 @08:11PM (#38743252) Homepage Journal
    The US has created a system that is terrified that someone, somewhere, is not making money in perpetuity on property they did not create.
  • No, there is not (Score:5, Insightful)

    by Brain-Fu (1274756) on Wednesday January 18, 2012 @08:12PM (#38743276) Homepage Journal

    "What do all men with power want? More power." -- The Oracle (from The Matrix).

    Ideas are the most valuable commodity on the market today. Maintaining and increasing wealth is a simple matter of maintaining and increasing control over that which is valuable.

    There is no principle of justice or reason which will not be trampled underfoot in the name of increasing the power of the aristocracy.

    The only way to get the aristocracy to treat the rest of the world reasonably is to force them to do so. Appeals to fairness or practicality will not make them budge. The rest of us have a numbers advantage but that only helps when we are organized enough to use it. If you want reasonable copyright terms, you will have to force their hand. Count on it.

  • WTF (Score:4, Insightful)

    by shentino (1139071) on Wednesday January 18, 2012 @08:22PM (#38743388)

    Seriously, WTF?

    Don't we have something in the constitution about, I dunno, ex post facto laws?

    What about all those people who copied or derived from formerly public domain works that are now under copyright again?

  • by amiga3D (567632) on Wednesday January 18, 2012 @08:25PM (#38743412)

    Wrong! The purpose of copyright is to make money for our Corporate Overlords.

  • Re:Terrible (Score:3, Insightful)

    by KiloByte (825081) on Wednesday January 18, 2012 @08:30PM (#38743464)

    From my reading of the US constitution, the Congress is not allowed to enact any copyright laws at all. 10th Amendment disallows messing with anything that is not an enumerated power (as defined by article 1 section 8). The referred to power allows "promoting Science and Useful Arts".

    This can be read two ways:
    * in 18th century, "useful arts" did not mean "art" in today's sense of the word; this clause allows patents
    * if you use "art" in the modern sense, this disallows copyright on typical entertainment (definitely not "useful")

  • Re:WTF (Score:5, Insightful)

    by DragonWriter (970822) on Wednesday January 18, 2012 @08:35PM (#38743526)

    Seriously, WTF?

    Don't we have something in the constitution about, I dunno, ex post facto laws?

    An ex post facto law is a law which makes an act criminal (or increases the criminal punishment applicable to the act) after the act was committed. Applying copyright to existing works (even to the extent that copyright law has criminal elements) isn't an ex post facto law.

    (It would be if doing so meant that the exclusive rights under copyright and the criminal penalties that apply for violating them applied to acts which occurred prior to the passage of the law taking the works out of the public domain, but that's not the issue here.)

  • Re:Terrible (Score:5, Insightful)

    by PRMan (959735) on Wednesday January 18, 2012 @08:35PM (#38743532)
    And beyond that, anything that doesn't promote additional works should be unconstitutional. Taking dead authors' works out of the public domain doesn't encourage creation.
  • by Anonymous Coward on Wednesday January 18, 2012 @08:35PM (#38743536)

    ahahahahhahahahahha. Snort.

    Now they are taking away things already in the public domain?? Your legal system is as hilarious to watch as your government. Put the two together and it is just comedy gold.

    I mean it wouldn't be as funny if the corruption wasn't so obvious but as we all know - hyperbole is hilarious.

    You are so screwed....

  • by PRMan (959735) on Wednesday January 18, 2012 @08:36PM (#38743550)
    Shouldn't that make this an Ex Post Facto law? Again, making it unconstitutional?
  • by Anonymous Coward on Wednesday January 18, 2012 @08:50PM (#38743692)

    Please take a look at this (if you still can):

    http://www.linuxtoday.com/news_story.php3?ltsn=2012-01-13-002-39-OP-OO-LL-0000

    It's woefully redacted but the two main things intended to be conveyed were:

    1) IP is in fact "Idea Piracy" the forceful appropriation of things one does not or cannot own... some -- including "Larry, the free software guy" use a Latin motto to put it very well: "Res publica non dominetur". Since my language is Latin-derived, I venture to offer a tentative translation: "You shall not take over a public thing" or, perhaps better, "A public thing shall not be taken over".

    and

    2) Sometimes governments "let" private entities do the dirty work. Think "privateers" or "corsairs" who got official recognition and status by a decree and could do whatever they want; these would only become extinct when the general consensus and international treaties allowed everyone to get rid of them. We need such treaties to be made effective to put an end to such private entities evildoings and to help some governments to get sober again.

    I welcome being corrected wherever I am wrong. These views are my modest understanding of some of the problems we face now and an analogy to other bad moments in history we had the good fortune to overcome.

  • by shentino (1139071) on Wednesday January 18, 2012 @08:53PM (#38743722)

    Actually, you'll get into a legal fight and whoever has the most money to throw at congress will wind up owning both versions.

  • Fritz Hollings (Score:4, Insightful)

    by Scareduck (177470) on Wednesday January 18, 2012 @09:00PM (#38743792) Homepage Journal

    hasn't been in the Senate since 2004.

  • by schroedingers_hat (2449186) on Wednesday January 18, 2012 @09:25PM (#38743986)
    Don't worry, they'll force their laws on your country, too with 'free trade' agreements and treaties..
  • by cusco (717999) <brian...bixby@@@gmail...com> on Wednesday January 18, 2012 @09:30PM (#38744042)
    People in Peru tell me they look up to the US because we don't have corruption. My reply is that the US is every bit as corrupt, just that normal people can't afford to buy a "public official" here because they're too expensive.
  • by Jhon (241832) on Wednesday January 18, 2012 @10:19PM (#38744390) Homepage Journal

    "missed the part about Congress there didn't you?"

    Congress is 500+ pandering politicians voting on stuff that (at least TECHNICALLY) are in the interests of their constituency.

    The Supreme Court of the United States are 9 live-time appointed jurists who's job (at least TECHNICALLY) is to review both laws and judgements both unbiased and uninfluenced by public opinion -- to decide if those conflicted with the Constitution.

    Congress WILL do the moneygrab thing from time to time. That's almost expected. It's when SCOTUS apparently blows off it's responsibility that really chafe our nads.

  • Re:Terrible (Score:4, Insightful)

    by BlueStrat (756137) on Wednesday January 18, 2012 @10:29PM (#38744450)

    No language to prohibit, I was understanding that the federal government has no power that is not specifically given so would the lack of such language mean no permission to do so? Or am I just wrong on that?

    That's the old way to read the Constitution. The new way to read it is that anything not specifically prohibited is allowed, and those things specifically prohibited can be done, you just have to justify it by saying "terrorism!", "the children!", or simply enact it with an Executive Order and/or through regulations.

    If somebody set off a nuke in D.C. and wiped out the entire Federal government, I think at this point I'd celebrate. It would be the best thing to happen to the USA in a century.

    Strat

  • by PopeRatzo (965947) * on Wednesday January 18, 2012 @10:47PM (#38744574) Homepage Journal

    There is no principle of justice or reason which will not be trampled underfoot in the name of increasing the power of the aristocracy.

    Because it's not enough that they are rich and have power. They must also see to it that everyone else is poor and powerless.

    For these people, being rich and powerful is no fun unless you have a sufficient supply of poor and weak people. For comparison, you see.

    There is an ugly, pathological strain at the top. It's like the scum that forms on a pond. Without stirring things up every once in a while, this scum grows unabated.

    There was a great presentation at TED not too long ago about income disparity, how it makes a society sick. The greater the income and wealth disparity, the more depression, the more addiction, the more crime, the more unhappiness. And of course, when you have great disparity, you have less and less social mobility. That's why countries like Denmark and Finland and Sweden and Germany and others have greater social mobility than the US. If you are poor in the US, you are very likely to stay poor. If you live over there, you have a greater chance of moving up. That's why you hear people say, "If you want to live the American Dream, move to Denmark" (or Finland, etc).

    I really believe it's time that the people who have wealth and power are overdue for a lesson in social responsibility. These lessons are seldom very pleasant, but it didn't have to go this way. They really believed, since the "Reagan Revolution" that there would be no end to their party of theft and destruction.

    Mitt Romney-types like to talk about "creative destruction". I think he's due for a lesson in what "creative destruction" means.

  • by geekoid (135745) <dadinportlandNO@SPAMyahoo.com> on Wednesday January 18, 2012 @11:10PM (#38744726) Homepage Journal

    And you are wrong.
    Please. you have no clue what corruption is like in Peru, and many other countries.

    When was the last time you had to pay off the cable guy on top of your normal payment? when was the last time you had to slip an extra hundred to get your water turned on?

    When was the last time the police came to you house so sell you 'protection'?

    Please.

  • by raehl (609729) <raehl311@[ ]oo.com ['yah' in gap]> on Thursday January 19, 2012 @12:18AM (#38745168) Homepage

    SCOTUS is supposed to overturn laws that are unconstitutional.

    They are NOT supposed to overturn laws just because they are bad.

    SCOTUS ruled that congress putting public domain items back under copyright is NOT unconstitutional... because it isn't.

    You may not care for the outcome, but the Supreme court isn't there to prevent Congress from doing stupid shit. The only people you have to blame for this is Congress and whichever President didn't veto it.

  • by sootman (158191) on Thursday January 19, 2012 @12:26AM (#38745214) Homepage Journal

    Disney literally built their empire on PD works. Most of their best-loved and most successful movies come from work that predates copyright--their original classics (Snow White, Pinocchio, and Cinderella), the films that sparked their revival in the late 80s/early 90s (The Little Mermaid, Beauty and the Beast, Aladdin), and many others.

    FUCK THEM, and the lawmakers they buy. Read that old paper you swore to uphold: Article I, Section 8: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"

    Key words there:

    • "limited times" -- yes, a million years is "a limited time" but you know that's not what they meant
    • "authors and inventors" -- not "their descendants and agents."
    • "To promote the Progress of Science and useful Arts" -- not "to promote megacorps' bottom lines"

    Fuckers, it's not even halfway down the page. [archives.gov] PD did exactly what it was supposed to do: things that weren't in copyright were available for (in this case) Disney to do wonderful things with. Now, art will be relatively inaccessible from 1928 on.

  • by PopeRatzo (965947) * on Thursday January 19, 2012 @12:34AM (#38745274) Homepage Journal

    and 'everyone's equal' societies require repressive regimes to enforce such unnatural states.

    Did someone mention "everyone's equal" societies? Or are you constructing some sort of straw man?

    but communism is unworkable.

    Again, did someone mention "communism"? I think you may be having an argument with yourself.

    What I was talking about is a boundary condition where income and wealth disparity is no longer a by-product of "liberty" but rather a by-product of an oligarchic tyranny.

    I'm sure there's someone, somewhere who will discuss "communism" with you, but if you're trying to reply to me, you're way off the mark.

  • Re:Terrible (Score:3, Insightful)

    by Anonymous Coward on Thursday January 19, 2012 @12:54AM (#38745368)

    You seem to have misread the sentence you quoted - which really takes some effort. The semantic structure is as follows:

    To do A, by doing B.

    This means to do B in order to achieve A. Not doing B in order to achieve C, or doing B in all possible cases.

    "A" here is promoting the progress of science and the useful arts. "B" is implementing a copyright system. So Congress has the right to implement a copyright system to the extent that it promotes the progress of science and the useful arts. If an aspect of the copyright system does not promote the progress of a science or a useful art, Congress does not have the right to implement it.

  • by Anonymous Coward on Thursday January 19, 2012 @01:00AM (#38745400)

    What an amazingly wonderful social order the west is, when its governments are able to rob citizens blind and then blame each of their independent internal departments, none of which are singularly responsible for said robbery.

    Get off your high horses vis a vis China, Islam, South American socialism etc. Your system is more broken than anything.

  • by JoshuaZ (1134087) on Thursday January 19, 2012 @01:17AM (#38745458) Homepage

    Let me suggest a different, more optimistic narrative. Back in 2000 during the ongoing Bush-Gore legal fights, I was in a conversation with my brother and a mutual friend of ours whose family had emigrated from Venezuela. My brother expressed that he was appalled at what was happening and how it was making an absolute laughingstock out of the US. Our friend disagreed and said (slight paraphrase): "You don't understand. In much of the world, this would be solved by fighting in the streets until one's sides army faction gained ascendancy. This is being resolved with paperwork not bullets. This is the height of civilized behavior."

    The situation here is similar. A 6-2 legal decision that allows in some limited circumstances some works in the public domain is pretty good behavior. The comparison to make is having members of the government come around at gunpoint and take property they want to give to their friends. We can disagree with a court case, but the fact that these sorts of things are decided by the courts shows how far we've come. This is by no means perfect, and what Bush and Obama have done with Guantanamo and other issues shows that we need to remain vigilant and constantly fight against the slide into violence and tyranny. But that doesn't mean either that we should lose perspective about where our society stands.

  • by gambino21 (809810) on Thursday January 19, 2012 @01:18AM (#38745462)

    ...putting public domain items back under copyright is NOT unconstitutional... because it isn't.

    Well, at least two justices disagree with you, so it's reasonable to argue that they made the wrong decision here.
    This is what the consitution has to say regarding copyright:

    The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

    To me this means that any copyright law which does not promote the progress of science and/or useful Arts is unconstitutional. So you would have to make the case that moving these works out of the public domain accomplishes that.

  • by aztektum (170569) on Thursday January 19, 2012 @01:31AM (#38745502)

    US corruption is different, but more pervasive than "paying off the cable guy." It's global.

    The US government has twisted entire countries to do its bidding. We've installed tin pot dictators that suppress their entire country in order to please the US. Kind of hard to pay off that level of corruption with an extra $5.

  • by rtfa-troll (1340807) on Thursday January 19, 2012 @02:15AM (#38745650)
    Only if you can be punished for the copying that you did whilst it was still in the public domain.
  • by Anonymous Coward on Thursday January 19, 2012 @03:09AM (#38745810)

    SCOTUS ruled that congress putting public domain items back under copyright is NOT unconstitutional... because it isn't.

    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

    1) It doesn't promote Science or useful Arts. It subtracted from them, by taking something out of the public domain.

    2) If something can be placed back under copyright, it's not a limited Time.

    That's unconstitutional enough for me.

  • by Anonymous Coward on Thursday January 19, 2012 @04:33AM (#38746088)

    most of those international provision are pushed by the US and agreed internationally because then the US can play the card '!!foreign are forcing our hands!!' instead of having to put up with unrest and agitations (see: ACTA and SOPA history)

  • by BlueParrot (965239) on Thursday January 19, 2012 @05:00AM (#38746172)

    BitTorrent exists for a purpose.

    It exists because it is a very efficient and convenient way to quickly share large amounts of data. Several companies make use of it, including Blizzard Entertainment.

    Please don't promote the idea that it is only used for exchanging media without permission of the copyright holder.

  • by Anonymous Coward on Thursday January 19, 2012 @05:22AM (#38746218)

    This argument of "at least we're not a shitty country like China or Venezuela" is complete bullshit and no excuse for allowing what evils we do have to flourish. For some reason this apologetic "perspective" making is pervasive all of the sudden. However, it makes little sense. The reason we're not like these countries is that we don't tolerant corruption of any kind, on principle. As soon as you start allowing it because "it's not so bad", it becomes easier to erode our liberties that much further.

    Yes, it is better than using violence to solve an argument, but it's no less wrong and no less an example of weak individuals selling the public's liberties to the moneyed interests.

  • by pla (258480) on Thursday January 19, 2012 @07:49AM (#38746708) Journal
    Congress is 500+ pandering politicians voting on stuff that (at least TECHNICALLY) are in the interests of their constituency.

    Except, most people have the same false assumption about Congress that they do about TV. With TV, we naturally assume, as the viewer, that we act as the customer and the shows serve as the product; in reality, we act as the product and the advertisers count as the real customers.

    With Congress, the same idea applies - We assume they work for us, sometimes in ways we don't like, but overall for the purpose of keeping society flowing smoothly to our mutual benefit. In reality, they do act to maintain social stability, but couldn't care less about whether or not we like it - Only whether or not we can make it to work every morning, and to the store on the weekends to give back our pay for a fraction of what we produced during the week. Pump us for labor, then pump us again to get the money back.

    Don't like it, and want to try living alone on a small farm in the middle of nowhere? You'll soon discover the joys of property tax, Citizen! In this world, you either belong to the oligarchy in the membership sense, belong to the oligarchy in the serfdom sense, or belong to the oligarchy in the prisoner/slave sense - With the latter the primary motivation for the "middle class" of that lineup.
  • by DarwinSurvivor (1752106) on Thursday January 19, 2012 @08:50AM (#38746920)

    No, but if someone got the work as public domain (with a public domain notice attached) and were never told that it had magically become NOT public domain, then sent someone else a copy (believing it to STILL be public domain), that is about half-way between entrapment and ex post facto. This gets even WORSE when businesses (big or small) USED these public domain works as part of their identity (logos, etc) or murchandise (t-shirts, pins, stickers, emblems). Imagine if snow white, pocahontas and cinderella suddenly became owned by some guy in Florida, Disney would be SCREWED if they continued selling those before finding out.

    How the hell do they expect to inform every person that has a copy of the ex-public-domain works and tell them "By the way, your logo is now illegal because the clouds you used in the background are now copyrighted".

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