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Supreme Court Takes Up Scholars' Rights 190

schwit1 writes with this quote from the Chronicle of Higher Education: "For 10 years, Lawrence Golan has been quietly waging a legal campaign to overturn a statute which makes it impossibly expensive for smaller orchestras to play certain pieces of music. Now the case is heading to the US Supreme Court. The high-stakes copyright showdown affects far more than sheet music. The outcome will touch a broad swath of academe for years to come, dictating what materials scholars can use in books and courses without jumping through legal hoops. The law Mr. Golan is trying to overturn has also hobbled libraries' efforts to digitize and share books, films, and music. The conductor's fight centers on the concept of the public domain, which scholars depend on for teaching and research. When a work enters the public domain, anyone can quote from it, copy it, share it, or republish it without seeking permission or paying royalties. The dispute that led to Golan v. Holder dates to 1994, when Congress passed a law that moved vast amounts of material from the public domain back behind the firewall of copyright protection. The Supreme Court is expected to decide the case during the term that begins in October."
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Supreme Court Takes Up Scholars' Rights

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  • by burris ( 122191 ) on Wednesday June 08, 2011 @02:45AM (#36371988)

    Both the Copyright and the Supremacy clauses are working against him. Congress has the power to grant copyrights and in Eldred the Court said as long as they theoretically expire at some point in the future then all is well. Also, signed and ratified treaties are, along with the Constitution, the supreme law of the land. Yay for "harmonization."

    • by Adrian Lopez ( 2615 ) on Wednesday June 08, 2011 @03:20AM (#36372124) Homepage

      As far as I know, copyright on works affected by the Eldred decision had not yet expired. I don't agree with the Eldred decision, but I think there's a big difference between extending the term of protection on copyrighted works and granting copyright on works that have entered the public domain. They're simply different issues.

      As for treaties and the US Constitution both being considered "the supreme law of the land", such an observation does nothing to address how conflicts should be resolved when one bit of "supreme" law contradicts another bit of "supreme" law. I don't have much confidence in the US Supreme Court these days, but my hope is that any conflicts shall be resolved in favor of US citizens.

      • by burris ( 122191 ) on Wednesday June 08, 2011 @03:33AM (#36372176)

        You're right that Eldred doesn't directly apply but it reveals the justices thinking. As the infamous Jack Valenti said before Eldred was decided, "Limited means whatever Congress says it means." I doubt much has changed since then.

        I don't see how returning something to protection for a limited time conflicts with the copyright clause, perhaps you could elaborate.

        • by Adrian Lopez ( 2615 ) on Wednesday June 08, 2011 @04:11AM (#36372336) Homepage

          I don't see how returning something to protection for a limited time conflicts with the copyright clause, perhaps you could elaborate.

          That's a good question. I don't really have an answer except to say that restoring copyright on works for which the term of copyright has already expired makes "limited times" a meaningless concept. I realize that's basically the same line of reasoning used in Eldred, but my hope is that extending copyright on public domain works is outrageous enough that the justices will think straight for a change and recognize this.

          • by metacell ( 523607 ) on Wednesday June 08, 2011 @06:26AM (#36372766)

            It's also legally very problematic to retroactively revoke rights. If a work is in the public domain, you have the right to do what you want with it, including performing them publicly and creating derived works. If the work becomes copyrighted again, who owns the derived works? What happens if someone has bought and paid for the copyright to a derived work?

            • by rbrausse ( 1319883 ) on Wednesday June 08, 2011 @08:50AM (#36373556)

              If the work becomes copyrighted again, who owns the derived works?

              uh, The Walt Disney Company?

              ha, this question was a simple one :)

            • All law, civil and criminal has some tie to rights, but this is about more than the general principle that such rights exist. As copyright was originally set up, it was all tort law, with no criminal penalties. As more and more copyright law has become criminal law, the ex-post facto situation applies as it always does in criminal law. It's a two step process - first bring some works back under copyright, and only then criminalise some actions involving those works, and by splitting it up into steps, law en

          • by jedidiah ( 1196 )

            > That's a good question. I don't really have an answer except to say that
            > restoring copyright on works for which the term of copyright has already
            > expired makes "limited times" a meaningless concept.

            So does repeated retroactive extension. It's the same problem. It's the same mindset.

            I see this stuff and I think of Scalia talking with Vader's voice: "I've altered the bargain. Pray that I don't alter it any further".

        • I don't see how returning something to protection for a limited time conflicts with the copyright clause, perhaps you could elaborate.

          Perhaps not, but try explaining how doing so "promotes the Progress of Science and useful Arts". Do you really think that the creator of something that has actually expired out of copyright into the public domain is going to start creating new works if his (very) old stuff is returned to copyright? In reality, even before the most recent extension of copyright terms it was more than likely that the original creator was long dead before the copyright expired.

          Unfortunately, what will happen is that if this

          • by Shagg ( 99693 )

            Copyright stopped having anything to do with promoting the progress of science and useful arts a long time ago.

        • by Hatta ( 162192 )

          "Limited means whatever Congress says it means."

          Unless it's the debt limit.

      • by Dachannien ( 617929 ) on Wednesday June 08, 2011 @05:30AM (#36372578)

        Actually, there is fairly old case law that affirms that the Constitution trumps any treaty. I'm not sure whether that helps in this case, though, since it's unclear how much weight SCOTUS would actually give the "to promote the progress of science" clause in determining whether Congress has the power to place public domain works back into copyrighted status. Plus, there's the Commerce Clause to rain on everyone's parade yet again.

        Personally, I think this would be more interestingly argued as an unconstitutional taking from the public without just compensation in violation of the fifth amendment.

        • Personally, I think this would be more interestingly argued as an unconstitutional taking from the public without just compensation in violation of the fifth amendment.

          Especially since that is an argument as to why we can't un-do the recent copyright extensions. They have already been granted, and you can't take stuff away. With this argument, if the extensions stay then the public domain status also stays. Reinstating the copyright was an unconstitutional taking that has to be reversed.

          Or, we could put

    • by White Flame ( 1074973 ) on Wednesday June 08, 2011 @04:03AM (#36372288)

      My take on things is not that congress simply has the power to grant copyrights, but that congress has the power to grant copyrights "to promote the Progress of Science and useful Arts". As in, if copyrights are granted for any other reason (e.g. to appease lobbyists or make any entity more money), it is an unconstitutional act.

      • by Hatta ( 162192 )

        Too bad the Supreme Court doesn't care what your take on it is. All they care is how much power they can return to their masters without getting impeached.

        Look at what they did in Al Kidd v Ashcroft. It plainly did not matter that Ashcroft's intent was explicitly forbidden by the law. And that was a unanimous decision. The Supreme Court cares about nothing but expanding government power.

    • The thing is that there has been a change of four Justices since the Eldred ruling. I don't know how the new Justices will rule on this issue. I would expect Kagan and Sotomayer to rule against Golan, since they, generally, favor a very expansive interpretation of the Commerce clause. However, liberals are often anti-copyright, so they may surprise me. I have no idea how Roberts or Alito view copyright (in particular the copyright clause of the Constitution).
      I think that this decision will tell us a lot a
    • by hey! ( 33014 )

      Well judging from the summary, the issue isn't copyright extension, but *retroactive* copyright extension. Taking a work that is *already* in the public domain away from the public domain entails many issues that don't arise when simply extending copyright. So one who believes in copyright extension might reasonably object to *retroactive* copyright extension. For example it restricts the property rights of people who, in good faith, make legal copies and derivative works while a work is in the public do

      • by Hatta ( 162192 )

        We can judge how sincere the "original intent" crowd is by how they treat this issue.

        The original intent crowd sincerely believes that the original intent of the Founding Fathers was to establish a corporate aristocracy.

  • 5-4 favoring the corporatists. That does seem to be the order of the day when it comes down to it.

    Unless it involves the "b b but terrorists" legal cancer (You have no need to know about this, Citizen. Your betters will not abuse it), then it's 9-0.
    • Re: (Score:3, Insightful)

      by phantomfive ( 622387 )
      This is the problem when you make stereotypical judgements of the supreme court based on the few cases you care to pay attention to. Last time there was a major copyright case, it was 7-2 favoring the 'corporatists' (and not even all corporations favor copyright; only the ones who benefit from copyright favor it). Of the two who opposed it, one was appointed by a democrat, and one by a republican.

      Also, what is your weird idea about terrorists legal cancer? For example, Rasul vs Bush [] was a huge defense of
      • He didn't say left or right or Republican or Democrat just corporatist. You used his comment on terrorism laws eroding our freedom as a shibboleth to avoid taking his comment at face value.

        Corporatism definitely [] crosses party [] lines in [] our gov't [].
        • Hating corporations to an irrational degree (I already pointed out the irrationality of his conclusions) plus thinking that the supreme court is in the pocket of some 1984 government conspiracy is a pretty strong sign of an irrational leftist. Not always, of course.
    • On these matters it's almost always 8-1. The 8 hold some stupid pro-corporate view that makes absolutely no sense, while the 1 dissenting opinion is what the other 8 should have gone for but didn't...
      • No, it's 8-1 because there's no evident legal basis to overturn the lower courts. The judges decide on the law, they don't actually make it (though they're accused of it all the time). They can't just overturn properly created legislation that does not conflict with other legislation or treaties or the constitution. It will be interesting to see what sort of legal theory for overturning it will be presented (I don't think "too expensive for small guys" will cut it).

        • by burris ( 122191 ) on Wednesday June 08, 2011 @03:40AM (#36372194)

          Thanks to the wonderful SCOTUSblog you can read [] the opinion below, petition for cert, brief in opposition, petitioners reply, and the amicus briefs.

        • But it does conflict with the Constitution, and is thus not 'properly created legislation.' Moving works from the public domain can't conceivably 'promote the progress', and it arguably limits the free speech of others.
          • by wisty ( 1335733 )

            It does "promote the progress". If have a 0.000000000000001% greater incentive to create a work of art, because I feel secure that my great great great great grandchildren will be more likely to hold copyright, then it's still an incentive.

            The issue is one of costs and benefits, which the constitution doesn't mention (IIRC).

            • by Sique ( 173459 )

              It also denies progress. If I have to pay 10000000000% more to actually get educated what Art is and how it works and how former artists have done it, I'll might not be able to create any art at all.
              What all those theorists about how copyright is an incentive forget, is that being confronted with Art is the greatest incentive of them all. No one will try to invent a song, if he has never heard a song. No one will try to write a novel, if he had never read one. No one will ever perform an act, if he has neve

            • But you can't have more of an incentive to create a work after the fact, and the works in question under the URAA were foreign works that were created without any promise of US legal protection at the time of their creation. That argument might hold for the obscenely long duration of copyright on new works (although we ought to insist that changes to policy be evidence based) , but it doesn't hold for retroactive extensions (among the competent, anyway), and certainly doesn't hold for moving works out of
            • Actually, longer copyright terms mean that I have a lower incentive to create. My publisher can keep milking existing works for a long time, so they have less of an incentive to buy new things from me, and so I have less of an incentive to create them. This is less true in areas like software, where if you don't keep producing new features then eventually someone will independently create something independent, but software becomes obsolete long before copyright expires (no software has ever entered the p
        • by AK Marc ( 707885 ) on Wednesday June 08, 2011 @05:41AM (#36372618)

          No, it's 8-1 because there's no evident legal basis to overturn the lower courts.

          There's enough legal basis to uphold or overturn anything that makes it in front of the Supreme Court. They decide based on their personal opinion, then pull legal basis that supports their opinion, ignoring all else. That's why the results of the case can often be correctly guessed before the case is even heard by the Supreme Court. And that's also why it's so important that parties stack the courts to force their opinion on everyone, regardless of the law. No, not all "activist judges" are Democrats. All the Republican judges are as well, they just happen to "activist" in the general direction of the nutjobs that run around screaming "activist judges."

          • No, not all "activist judges" are Democrats.

            That this statement even has to be written down represents a miracle of political branding and propaganda.

            • by danlip ( 737336 )

              They are using activist as a synonym for liberal. Which works because liberals love to run around calling themselves activists.

          • The reason that SCOTUS decisions can often be predicted is because law largely functions like computer code. Given these inputs, run through this set of logic gates, and it's likely that you'll get this output.

            The thing that adds ambiguity is the same thing that intorduces problems in WIndows XP: support for legacy code. The US civil/criminal code is a HUGE beast, probably constituting as many "lines of code" as are in XP, but not all of the lines make sense in the modern environment. In some cases, these b

        • by jedidiah ( 1196 )

          The whole "limited" times thing is a pretty obvious legal basis.

          The idea that there is "no basis" here for taking a more individualistic approach to the law is entirely bogus.

          In fact, it is the "individualistic" aspects of the Constitution that are supposed to take precedence.

  • by phantomfive ( 622387 ) on Wednesday June 08, 2011 @02:48AM (#36371998) Journal
    I remember reading that when Lawrence Lessig went to the supreme court to challenge copyright law, the court kept asking for examples of damage caused by the law, and Mr Lessig kept answering in abstract legal/constitutional principles. The court seemed to be of the opinion that, "if it's not hurting anyone, (and is benefiting copyright holders), there's no reason to change it."

    So this time the professor has lots of evidence that actual damage is being done. It will be interesting to see if the court changes their opinion based on this new evidence.
    • by NeutronCowboy ( 896098 ) on Wednesday June 08, 2011 @03:25AM (#36372154)

      Lessig answered in abstract terms because it is very, very difficult to quantify the cost of removing something from the public domain. It's easy to see the benefit: just count the revenue generated by the IP for the rights holder. I suspect that Golan is going to run into the problem of "I see that it is too expensive for you to play Prokovief. Why is that more important than Rightholder A making money off of his sheet music?" Damage might be there, but it is always put into the context of the benefit derived from the existence of the copyright. And he's going to lose that battle every time: because music in general is a big market, and therefore there is no need to play a particular piece - but an individual rightsholder derives direct benefits from the royalties of a particular piece that he/she can't derive from any other piece.

      Sometimes, in the rush to quantify everything, we forget that part of what makes us a civilization is the culture that we have in common. What is the value of that? I don't know. What price is a life? I don't know either. Sometimes, abstract considerations are necessary to work around the morass that is the monetary valuation of a moral position.

      • by Rogerborg ( 306625 ) on Wednesday June 08, 2011 @03:55AM (#36372258) Homepage

        With respect, I believe that Lessig also answered in abstract terms because he's a tenured professor with a strictly theoretical knowledge of the law, and (demonstrably) very little understanding of how courts and judges actually operate. Ultimately, his argument was reduced to "Aw, c'mon", and appropriately enough, his textbook knowledge has provided a textbook example of how not to argue a case.

        • That's a nice theory, Rogerborg. In theory, you'd be right. But of course in practice, that's not nearly how it works...
          • Here follows my clear mistake. Like a professor correcting a student, I answered,

            Justice, we are not making an empirical claim at all. Nothing in our copyright clause claim hangs upon the empirical assertion about impeding progress. Our only argument is, this is a structural limit necessary to assure that what would be an effectively perpetual term not be permitted under the copyright laws.

            That was a correct answer, but it wasn't the right answer. The right answer was to say tha

        • by Hatta ( 162192 ) on Wednesday June 08, 2011 @08:45AM (#36373504) Journal

          he's a tenured professor with a strictly theoretical knowledge of the law, and (demonstrably) very little understanding of how courts and judges actually operate

          In other words, Lessig argued based on the law. The Supreme Court ignored all that and ruled the way that would please their cronies. There's no way to explain the behavior of the Supreme Court in the past decade that doesn't involve corruption.

          • What is with the weird conspiracy theories jumping out? They explain their rational for their decisions; just because it doesn't fit into your stupid preconceived notions of left and right (or what is right) doesn't mean they are being bribed. Unless you have evidence of them being bribed (I'm assuming that is what you meant when you said cronies), then I'm going to put you in the category of people who are more familiar with how Hollywood works than how the world works.
            • by Hatta ( 162192 )

              Bribes don't enter into it. It's all about old boys networks, and making sure the right people get in the right places to make the right decisions to benefit the right people. Their "rational" for their decision is nothing but misdirection.

              You do realize you can have corruption without bribes right?

              • I do realize you border on insane.
                • by Hatta ( 162192 )

                  What explanation besides corruption is there for decisions like Al Kidd v Ashcroft? Anyone who respects the rule of law must recognize that our leaders must be not above the law. How do you get a unanimous decision that makes our leaders exempt from the law, unless the Supreme Court is corrupt?

                  Those who think that was an honest decision are not just borderline insane, they're completely delusional.

        • by hey! ( 33014 )

          I think it's more likely that he screwed up by not anticipating this question. That's a blunder, of course, and may reflect a little hubris if he thought he had a couple of slam-dunk arguments. If he had a few minutes he probably could have come up with a concrete example, but you don't get a few minutes to think because hostile justices will continue peppering you with questions.

      • by metacell ( 523607 ) on Wednesday June 08, 2011 @06:52AM (#36372860)

        "I see that it is too expensive for you to play Prokovief. Why is that more important than Rightholder A making money off of his sheet music?"

        You're probably right that the judges will reason that way, but the proper answer to the above is:

        "Granting Rightsholder A the right to make money from his sheet music does not produce any net benefits; it merely transfers money from the buyer to the rightsholder. The transfers need to stimulate production of new works to have a net benefit, and extending copyright on existing works doesn't qualify. Extending copyright on those works does, however, result in a net loss, since they have a hemming effect on the performance of said works, which means fewer people will be able to enjoy and benefit from them."

      • As Mr Lessig himself mentioned, there have been many briefs written detailing the damages caused by extended copyright. He mainly failed to bring those up, and he felt quite bad about it.
    • by sgtrock ( 191182 )
      In Lessig's own words []:

      But in February 2002, the Supreme Court surprised the world by granting our petition to review the D.C. Circuit opinion. Argument was set for October of 2002. The summer would be spent writing briefs and preparing for argument.

      It is over a year later as I write these words. It is still astonishingly hard. If you know anything at all about this story, you know that we lost the appeal. And if you know something more than just the minimum, you probably think there was no way this case c

    • by alexo ( 9335 )

      Since the only damages the court will consider are monetary, it follows that rights and freedoms have no value and therefore can be ignored.

      • Once again, you have to be an idiot to come to these kinds of conclusions. I don't think you are an idiot, so your problem is you're drawing idiotic conclusions because you aren't actually considering all the evidence. Do you even know anything about the Supreme Court? They definitely consider things besides monetary damage, look at Rasul vs Bush for one example.
  • by Hazel Bergeron ( 2015538 ) on Wednesday June 08, 2011 @03:09AM (#36372064) Journal

    Google, by trying to make money from old works through discriminatory deals with publishers and libraries, has attempted to monetise the public-domain and the nearly-public-domain on a massive scale. No longer is the path to public domain a path to moving ideas and their expression into the people's hands - it's now something that a sufficiently large corporation will try to wrestle control of for itself. The law thus has good reason to view old works as subject to all the usual competition and ownership rules as new works.

    The people are as much to blame for their passivity, of course. We, through non-profits and libraries, should have been preparing to distribute old work on a massive scale - to make it clear that it belongs to the people and it is in our interests to hold onto it for our enjoyment. Instead, we lazily allow business to deal with it. We suffer the expected consequences.

    • Agreed, although I was going to say that Google suggests a solution: you don't ask permission, you just do it, and damn their eyes. Make "rights" holders bring the cases and show how much they've been "damaged".
      • Had Google acted philanthropically, providing free public access to the raw data as works are digitised, that would be fine. And it might still benefit financially out of having the sheer resources to provide some impressive hosting of the works for end users.

        But it didn't. It played its usual "information for all - but more information for us than for you" game. Publishers groups etc saw it for what it was and we all lost out.

        • by Sique ( 173459 ) on Wednesday June 08, 2011 @05:22AM (#36372554) Homepage

          Had Google acted philanthropically, they couldn't have shown damage from being no longer allowed to do so. Copyright is about business, and to argue about copyright, you have to show a business case.

          • Exceptions to copyright are not inherently about business, and at least nominally, copyright is about enriching society. One of the four factors in fair use is nature of use, which favors non-profit purposes somewhat.
            • by pacinpm ( 631330 )

              Copyright was introduced to fight competition. Read about history of copyright. It had nothing to do with "promoting" or "enriching society".

              There were times without copyright and there were plenty of music and other arts.

              • I'm not saying it worked, and it appears that it never has, but the way the modern incarnation (the previous incarnation being pretty much just about censorship to benefit the church and crown) was sold was on the premise that granting limited monopolies to authors would benefit society. In the case of the US, the clause in the constitution that allows copyright is limited to the purpose of 'promoting the progress.'
        • by wygit ( 696674 )

          So let's block it because they *might* benefit financially. There's no benefit to the public in having all those wonderful but not-worth-reprinting books from the 60's, 70's, 80's digitized and made available for very cheap if not free.

          I'd LOVE to get my hands on a copy of T.J. Bass ("The Godwhale") or some of Thomas Burnett Swann's mythology stories, or the REST of Leonard Wibberley's "Mouse" books for my reader.

          But no, it's much better that they just disappear from memory, from anyone even knowing they ex

    • What in holy hell are you talking about? Google provides a service that makes works in the public domain accessible to more people. How is this a problem? Google does not attempt to claim ownership of any of these works and anyone is free to set up their own service that does the same thing. Regarding your claim about Google making deals with publishers for old works, what do you expect? The law is on the side of the publishers and many of these works may never make it to the public domain if Disney ke
      • Google does not attempt to claim ownership of any of these works

        Google is asserting that it offers the same access to materials (subject to duty of care) and their raw digitised forms that it has obtained for itself.
        __ Yes
        __ No

    • by fermion ( 181285 )
      As summary states, the problem predates Google. The problem is that we have redefined who should benefit from intellectual property. At one time it was the inventor and the children, so the limit on ownership was essentially two generations. Now it is the legal entity that owns it, which will never be allowed to completely disappear, so the time limit on ownership is essentially forever when compared to a human life span.

      The good news is it may not matter for creative work. Artists can choose to more

    • by jedidiah ( 1196 )

      The discriminatory deals were not Google's idea. The discriminatory deals were the REACTION OF THE PUBLISHERS to Google's attempts to make works more useful and more available including those for which the ownership of the works cannot be easily established.

      Google certainly should not have a favored position. However, any favored position was merely a side effect of how middle men reacted to Google.

      A more balanced law that acknowledges the problem of orphaned works in a meaningful way is sorely needed. Of c

  • "The Supreme Court is expected to decide the case during the term that begins in October."

    This conductor is about to see fees double and copyright extensions triple, I suspect.

Thus spake the master programmer: "When a program is being tested, it is too late to make design changes." -- Geoffrey James, "The Tao of Programming"