US Supreme Court Upholds Removal of Works From Public Domain

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)."

Re:Terrible

[u38cg]

I haven't read the opinion, but generally speaking, my understanding is that international treaties signed by the US are on the same legal level as the Constitution. So if the Berne Convention says that such-and-such must be copyrighted, then Congress must have de facto power to copyright it.

Re:Terrible

[DragonWriter]

I haven't read the opinion, but generally speaking, my understanding is that international treaties signed by the US are on the same legal level as the Constitution.

This understanding is incorrect. Its a reasonably common misapplication of Art. VI, para 2: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

This doesn't mean that treaties (or federal statute law) is on the "same legal level" as the Constitution, it means that the Constitution itself, and any treaties or laws ratified or adopted under it, are superior to acts of state government.

The rationale in the decision in this case [wired.com] is basically that the Copyright Clause has no language in it which prohibits retrospective application of the exclusive rights Congress is authorized to grant under that Clause, and that, there is a long history of Congress creating copyright in existing works which were in the public domain, the whole way back to the first copyright law under the Constitution, the Copyright Act of 1790.

Re:Bush Nominees

[PRMan]

Well, he did try to pick people familiar with the Constitution instead of activists...

Re:Bush Nominees

[Nixoloco]

Did anyone notice the two dissenters were appointed to the court by President George W. Bush?

No, because they weren't. Justice Stephen Gerald Breyer was appointed by President Bill Clinton in 1994.

Re:Bush Nominees

[forkfail]

Chief Justice Roberts was appointed by Bush. So, one of the Bush appointees - the Chief Justice - went for the ruling.

Alito was also appointed by Bush - so you're right there.

Breyer was appointed by Clinton.

So - yeah. I see the BushCo folks haven't gotten any better grasp of facts since Bush was in office.

But I'm sure you'll find your reality basis soon. It's probably north, south, east, west of here...

Sounds like more of a ruling on treaties than copy

[Registered Coward v2]

This extends copyright protection, in the US, to works still under copyright protection abroad and brings the US in line with Berne Treaty; essentially providing the same protection to foreign authors as it does to US. Once those copyrights expire the works will revert to the public domain. SCOTUS appears to leave open the argument that continual extension of copyright would be unconstitutional; in this ruling they said Congress has the right to bring US law inline with treaties and the Constitution's copyright provision does not prevent that. Congress should have done that when they ratified the teary but didn't; and that doesn't prevent them from later doing so.

Re:Thanks for nothing, SC...

[TopSpin]

Don't the assholes at Google have way more money than the assholes at Disney?

Google has a nice market cap, but otherwise it isn't necessarily wealthier than the media corps. Consider revenue; Google had $35.76B of revenue during the previous 12 months. Disney alone had $40.89B. The combined revenue of Time Warner, Disney, Sony and DreamWorks was $159.53B.

Incidentally, those media names figure prominently at OpenSecrets [opensecrets.org] as big contributors. DreamWorks in particular punching well above its weight. About 95% of it goes to one party. It is left as an exercise to the reader to discover which one.

A subtle argument....

[slew]

I think most folks have missed the sublty in the decision and the dissent. As my submission on this topic didn't make it, I'll just repost my view here.

Although the jist of the argument is if congress has the right to restore or extend copyright protection to works that were prior legally in the public domain in the USA before the treaty was in effect to come into compliance with the treaty, that wasn't the whole argument. The Berne Convention and the Uruguay Rounds allowed for a country to have restricted terms for works that had restored copyright to account for any disruption pulling things out of the public domain might cause. Apparently, the US congress decided to just do a blanket restoration of rights instead of any restricted terms which were allowed by the Treaty (specifically article 18 of the Berne Convention).

The subtle legal argument was that if by granting blanket restoration of rights congress overstepped its authority granted by the constitution by not restricting the rights as much as was allowed, but still compliant with the convention. In a disenting opinion authored by Justices Breyer and Alito voices the view that this legal implementation "does not serve copyright's traditional public ends, namely the creation of monetary awards that motivate the create activity of authors", but only grants its restored copyrights only to works already produced. Whereas just providing for minimal restored rights allowed by the treaty would still promote the activity of future authors by giving them the global opportunities for monetary rewards that would come by international copyright harmonization.

It's subtle, but an important distinction that, unfortuantly, seems to have been botched by the majority of the court (in my opinion). It's clear to me that the court generally agrees that congress has this specific power to change copyright in the context of this treaty (under the promotion of authorship provisions), but disagrees on if Congress actually stepped across the line on this specific implementation law. It isn't about compliance with an international treaty in general (the Parent/poster didn't make this mistake, but several other posters did), as it is certainly the court's perogative to say that the signing the treaty was against the consitution, if that were the case.

Re:Terrible

[Anonymous Coward]

Yeah.. with logic like that, don't go to law school unless you want to be laughed out of the room (Oh and IAAL).

Let's read what the Constitution (Article 1 Section 8, Clause 8) actually says instead of what you wish it said:

"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;"

Using parallel liguistic construction you see that the Progress of *Science* is promoted by granting grant *Authors* the exclusive Right to their *Writings*. Now, I know this is Slashdot where ignorance gussied up with some technobabble is trumpeted as being "enlightened" but the bolded term "Science" does *not* cover what patents cover, but instead covers what we today would call art, literature, music, and the other *works of authorship* covered under copyright law.

Re:Is there nothing...

[FairAndHateful]

Don't worry, they'll force their laws on your country, too with 'free trade' agreements and treaties..

The article indicates that this law/judgement was to comply with an international treaty. Something about works that were in the public domain in the US that were still copyrighted in other countries. Looks like this came to the US from the other side this time. Doesn't make it make a lot of sense.

Re:No, there is not

[guacamole]

I agree. I have spent some time in Central America. Observations: No-existent police network (ok, they exist, but won't do anything to protect you). Every public official, from a village mayor to the minister president surrounded by cronies who steal right and left by millions.. no comparison. The 'crimes' of the American legislators for which they went down in the Jack Abramoff affair were laughable in comparison.

Re:Is there nothing...

[Guy Harris]

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.

Just out of curiosity, were they in the public domain in your country? If you read the fine article [wired.com], you'll note that it says

For a variety of reasons, the works at issue, which are foreign and produced decades ago, became part of the public domain in the United States but were still copyrighted overseas. In 1994, Congress adopted legislation to move the works back into copyright, so U.S. policy would comport with an international copyright treaty known as the Berne Convention.

Re:Bah. This was the correct decision.

[Courageous]

That's not how ex post facto works. Ex post facto would be:

Make something "retroactively" illegal, and as a consequence of making the said thing illegal, convict you of a crime for something that was legal to do when it was done.