
Supreme Court Says Congress May Re-Copyright Public Domain Works - shrikant
http://www.wired.com/threatlevel/2012/01/scotus-re-copyright-decision/
======
kls
_Justice Elena Kagan recused, said Congress’ move to re-copyright the works to
comport with an international treaty was more important_

I am really tired of the arguments that sacrifice sovereignty for globalist
endeavors. Our laws are supposed to provide a framework of government for
American people and businesses, not ensure the rights of foreign works. The
rights of US citizens should be the foremost concern of a US legislator and
when it comes to satisfying a treaty compromising those rights the treaty or
international precedence should be thrown out the window. I feel like I am now
living in bizarro world where no right is safe. I mean the fact that public
domain, the resting place for IP is no longer the end of the line is about as
strange an interpretation of public domain as one could come up with. They are
laying the same groundwork for this international treaty argument on gun
rights as well.

~~~
Volpe
> ... sacrifice sovereignty for globalist endeavors.

Can anyone from the US really make this point with a straight face.

A little hypocritical to say the least.

~~~
ColinDabritz
If this was the position of the government it may be hypocritical. As
individuals we have our own views.

As a US citizen I dislike our interference around the world, especially when
it is without the support of the global community. I also dislike the use of
international treaties as a 'work around' to our sovereign law. While I do
believe in respecting the treaties we make, I dislike the practice of
intentionally making treaties that force us to change our laws as a 'hack' of
our government processes.

Where is the hypocrisy?

~~~
potatolicious
> _"I dislike the practice of intentionally making treaties that force us to
> change our laws as a 'hack' of our government processes."_

Isn't this the whole point of treaties though? What good is a treaty if member
states _don't_ have to change incompatible laws to conform with it?

What's the point of, say, signing a human rights treaty, without changing
currently compatible laws to fall in line?

~~~
dwiel
The point of the treaty is to come to an agreement between two governments. If
the provisions of the treaty are not legally possible than the treaty is
meaningless. For a more extreme example:

If the US congress signs a treaty with England which agrees that the US
Presidents will no longer have any power in exchange for the English Prime
Ministers too also no longer have any power, it doesn't matter because
congress didn't have the power to write such laws in the first place.

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dreamux
Interesting issue. I wonder if it would be possible for a country to set up an
extremely long copyright term (with a huge administrative fee) that would have
to be respected under US law (and other adopters of the treaty).

I'm sure many music/movie studios and authors would gladly pay $100K to
copyright each of their works internationally for 500 years...

~~~
akikuchi
Creative thinking, but I'd have to disagree with your conclusion. The present
value of the additional years of copyright would be very low, especially
taking into account 1. the probability that the work will still be a source of
value 100 years (not the exact number, but for the sake of argument) in the
future and 2.The possibility of changes in the local jurisdiction or US law
over that time.

Your idea would mean paying 100k for the possibility of receiving some
additional value 100 years in the future. The first 100 years of value are
already protected under US law.

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dangero
tl;dr; There are some foreign works that are still copyrighted overseas, but
the copyright has expired in the US. This ruling allows the Congress to
reinstate the copyrights for particular works so that the copyrights apply for
the full length of their term in the local country that they were originally
created/copyrighted in.

~~~
tobylane
Is there any limit to what it does past this? If the intention is to fit in
with the worldwide agreement by doing what you describe, it should be written
in a way that it can't be used to extend Mickey Mouse's protection or
something shortly before it.

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esonderegger
What surprised me most about the article is that Lawrence Golan, one of the
plaintiffs, implied that his orchestra had not been paying licensing fees for
works by Prokofiev and Shostakovich. Are they really playing from unedited
copies of the original manuscript?

For those unfamiliar, in the classical music world, musicians almost always
play from editions of the original work. Those editions are eligible for
copyright protection as derivative works of the original. As a result, if you
perform a Kalmus edition of a work by Bach, you would owe Kalmus royalties,
even though the original work by Bach is in the public domain.

Obviously, since much of the classical music repertoire was composed before
1923, anyone is free to make their own editions of popular works, provided
they have access to the actual original. In practice, however, very few do.
This is because creating a definitive edition of a musical work without
misprints is painstaking work that requires considerable amounts of time and
expertise.

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ndefinite
Wow, not surprised about the ruling. Kind of surprised about this quote
though:

Justice Ruth Ginsburg said “some restriction on expression is the inherent and
intended effect of every grant of copyright.”

~~~
anamax
What are you surprised about?

While we can argue about whether the benefits from said restriction are worth
the costs, it's clearly the case that copyright is intended to restrict
expression and necessarily does so.

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jellicle
That is utter insanity. And only two Justices understand. This is a dark day
for the U.S., and the vast majority of the population neither knows nor cares.

It's all up to Lessig now.

~~~
flyt
It's all up to you.

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B0Z
(US Citizen) The title of this post is a bit misleading and I'm having a hard
time seeing why there's a problem or disagreement here.

The ruling was specifically focused on foreign works as they relate to the
Berne Convention. This international treaty binds signatory nations to the
copyright protections provided in countries where the original art was
created. It would apply to both US copyright holders to protect their works
abroad and foreign copyright holders where their works are used here.

The Wikipedia page on the Berne Convention has some really interesting facts
on this treaty and you should read it before voicing opposition to the SCOTUS
ruling or claiming "American Exceptionalism" is being run over by a truck.
This is not a bad ruling and the 6-2 vote suggests 1 judge appointed by a
liberal President agrees with the argument. Ne, if you get into the opinion
(link below) you'll find that two conservative appointees dissented while the
remaining justices agreed (sans Kagan who recused). The point is that this was
hardly a "party line" or ideological divide.

The official opinion here:
<http://www.supremecourt.gov/opinions/11pdf/10-545.pdf>

Some worthy quotations from the Wikipedia page found at:
[http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protec...](http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works)

 _Before the Berne Convention, national copyright laws usually only applied
for works created within each country. Consequently, a work published in
United Kingdom (UK) by a British national would be covered by copyright there,
but could be copied and sold by anyone in France. Likewise, a work published
in France by a French national could be copyrighted there, but could be copied
and sold by anyone in the UK. Dutch publisher Albertus Willem Sijthoff, who
rose to prominence in the trade of translated books, wrote to Queen Wilhelmina
of the Netherlands in 1899 in opposition to the convention over concerns that
its international restrictions would stifle the country's print industry._

 _The United States initially refused to become a party to the Convention,
since that would have required major changes in its copyright law,
particularly with regard to moral rights, removal of the general requirement
for registration of copyright works and elimination of mandatory copyright
notice. This led to the Universal Copyright Convention in 1952 to accommodate
the wishes of the United States. But on March 1, 1989, the U.S. Berne
Convention Implementation Act of 1988 was enacted, and the United States
Senate ratified the treaty, making the U.S. a party to the Berne Convention,
and making the Universal Copyright Convention nearly obsolete._

Editorial. I believe in American exceptionalism on a number of fronts
including some trade issues. But, the notion that any individual or group of
people from one country can merely disregard the copyrights of and profit from
works created in another is ludicrous. I feel bad for the plantiffs -- the
orchestra members who brought the suit. They have been treated unfair, not by
the SCOTUS, but by a general failure of US enforcement of foreign copyright as
provided by the treaty.

Just my $0.02

~~~
lusr
I'm a bit puzzled by the reasoning, though. "The top court, with Justice Elena
Kagan recused, said Congress’ move to re-copyright the works to comport with
an international treaty was more important."

OK so they made their decision on the basis of there being a treaty... Does
this mean that any time you want to sidestep an actual examination of the
merits of an argument in the Supreme Court you just need to ensure there's an
international treaty in your favour? How does the US become party to a treaty,
in any case? I'm guessing it has something to do with Congress. This seems
like a bit of circular reasoning.

~~~
michael_dorfman
_Does this mean that any time you want to sidestep an actual examination of
the merits of an argument in the Supreme Court you just need to ensure there's
an international treaty in your favour?_

That ought to do the job; Article VI of the Constitution plainly states that
"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, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding."

In other words, if there is a treaty obligation, that trumps all other
considerations.

 _How does the US become party to a treaty, in any case? I'm guessing it has
something to do with Congress._

Article II, Section 2 of the Constitution spells this out: "[The President]
shall have Power, by and with the Advice and Consent of the Senate, to make
Treaties, provided two thirds of the Senators present concur..."

 _This seems like a bit of circular reasoning._

How so?

~~~
pessimizer
Because the constitution is setting up the rules for what can completely
superceed it. Basically: Congress and the President must follow these rules
when governing the country, except when they agree not to, as declared in
these same rules.

I get the need for treaties and and federal laws to superceed local laws, but
that laws have to be made pursuant to the Constitution while treaties only
have to be made under the authority of the United States, defined as the
President and 2/3 of the Senate, is odd. Seems as though they could legally
eliminate all constitutional obligations through treaty, or even enter into a
treaty to use a different constitution.

[http://en.wikipedia.org/wiki/Bricker_Amendment#Legal_backgro...](http://en.wikipedia.org/wiki/Bricker_Amendment#Legal_background)

~~~
michael_dorfman
This is not really circular at all, merely self-referential; the Constitution
also provides a process for it to be amended, so any and all of it's
provisions could be repealed or rewritten without having to get a foreign
government involved in the equation at all.

Of course, all of the parties involved (President, Senators, etc.) have sworn
an oath to uphold the Constitution.

~~~
pessimizer
I understand the creepy feeling, though. And I'm pretty sure that through
treaty, they've dramatically lowered the bar for entering into a treaty to
simple Presidential whim. According to Wikipedia, "executive agreements"
outnumber actual treaties by 10:1.

<http://en.wikipedia.org/wiki/Treaties#United_States_law>

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casca
While this might be frustrating on the surface, this is exactly the sort of
thing that should be decided by the lawmakers. You might personally dislike
what the US legislative branch has become, but if you follow that it is acting
in the interests of the citizens who elected them, this is the correct
decision.

~~~
dantheman
I beg to differ, the Constitution clearly specifies why copyright should
exist: "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."

How does retroactively adding copyright to public domain works in anyway
"promote" it's already been accomplished. This the same argument that was used
Eldred vs. Ashcroft where this argument also failed. It was a bad ruling then
and it's a bad ruling now.

If we want to have this decided by the lawmakers then we should amend the
Constitution to grant this power.

~~~
Volpe
Perhaps, because the world doesn't begin and end with the US east and west
coast.

If you ignore the fact this is still under copyright overseas, you are setting
the precedent that they can do the same in return. No?

~~~
joering1
the problem is that many times the world follows US laws and regulations and
applies those locally (also: student being deported to US based on broken UK
law that UK itself wasnt interested in prosecuting)

