
High court challenge to law that puts public-domain works back under copyright - grellas
https://www.eff.org/deeplinks/2011/03/supreme-court-hear-challenge-law-removes-works
======
grellas
The legal argument in this case is twofold: (1) that Congress lacks the
constitutional power to enact a copyright statute that does not in fact work
to promote the progress of the arts, etc.; and (2) that the particular
enactment here - taking works that were already in the public domain and
conferring upon them _ex post facto_ copyright protection - violates the free
speech rights of individuals (including libraries and other repositories of
public-domain works) by subjecting them to risks and liabilities that
effectively harm their right to make free expression of works that belong to
the public generally and not to a particular copyright holder.

The tricky precedent is the _Eldred_ case by which the Court had upheld
Congress' power to extend copyright terms beyond those originally permitted
when a particular work qualified for copyright protection. That case had been
argued primarily on a theory that the "progress clause" of the constitution
(that Congress shall have authority to enact copyright laws to promote the
progress of the arts, etc. for limited times) prohibited repeated extensions
that effectively made the copyright terms permanent and hence not for "limited
times" only. The Court had rejected that argument in a 7-2 decision.

Here, EFF distinguishes _Eldred_ by arguing that, while Congress may have the
power to extend rights of existing copyright holders, it lacks the power to
restore to a copyright holder rights to works of authorship that no longer
belong to them but are instead in the public domain. That is, such
"restorations" do nothing to further the progress of the arts (the
constitutional justification by which Congress can enact such laws) and, even
if they do, are nonetheless constitutionally defective because they violate
free speech rights of those who seek to express themselves in a vibrant public
commons consisting of public domain works available to all.

The legal nuances here are tricky but it is highly encouraging that the Court
decided to grant certiorari in this case. Liberals have long argued for
virtually unlimited powers for Congress in enacting statutory laws while
conservatives have basically rubber-stamped such broad powers when it comes to
expanding IP laws and the Court's factions have tended to follow these broader
trends. In a digital age, this means basically that those who can "persuade"
Congress to enact pet legislation favoring their commercial interests have an
open ticket to extend their protections far beyond what was properly intended
by copyright laws, among others. Perhaps this case will begin to draw a line
or two that says, "enough is enough." It will be interesting to see it play
out. Kudos to EFF for being at the forefront of this fight.

~~~
Symmetry
I'm entirely a legal layman, but I wonder why Congress couldn't just use the
commerce clause to establish copyrights even if it weren't an enumerated power
in the constitution. Surely if the first amendment did anything to prohibit
copyright it would apply just as much to congress using an enumerated power as
using the commerce clause?

~~~
sabat
Because copyright limits free expression, and so would violate the first
amendment.

~~~
Symmetry
But if that were (legally) true, wouldn't that mean we couldn't have copyright
at all, even with the enumerated power? I mean, if there was an enumerate
power saying congress had the ability to regulate political speech I'd assume
the first amendment would have taken precedence over that. But then again
IANAL.

~~~
Natsu
As I understand it, they don't believe that the 1st Amendment was meant to
supersede the Copyright Clause itself, but they acknowledge that they exist
"in tension" so they try to find a balance between the two, rather than
jettisoning the Copyright Clause in favor of the 1st Amendment.

That said, IANAL, so listen to grellas if he corrects me.

------
haberman
Larry Lessig wrote a great article about Eldred v. Ashcroft, which he called
"The Big One," since it was challenging the power of congress to keep
extending copyright terms as they have been continually since the beginning of
the 20th century. Lessig lost the case, which was a crushing defeat to him
because he believes that with the right strategy it could have been won.

[http://www.legalaffairs.org/issues/March-
April-2004/story_le...](http://www.legalaffairs.org/issues/March-
April-2004/story_lessig_marapr04.msp)

Lessig says that his mistake was framing the case around a somewhat abstract
argument: earlier cases like _United States v. Lopez (1995)_ had found that
when the Constitution grants congress an enumerated power, that power must be
interpreted in a way that makes it limited. The theory was that if congress
could keep extending the term of copyright whenever more works were about to
fall into the public domain, their power over copyright terms was effectively
unlimited. It seemed like such a simple, watertight argument and the Supreme
Court had bought it recently for other cases.

Lessig made this argument the center of his case, and redirected every line of
questioning with the Supreme Court justices back to this theory. When Justice
Kennedy asked if there was any actual harm _in practice_ , Lessig 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."

The justices wanted to see the actual harm, but Lessig only gave them an
abstract argument. This is unfortunate because Lessig has made an entire
career out of describing the benefits of "Free Culture."

The EFF is surely aware of _Eldred_ and its unfortunate outcome, and it
appears that their strategy is much more focused on showing the actual harm:

"In their briefs, both Mr. Golan and the Internet Archive pointed out that
allowing Congress to remove works from the public domain inserts potentially
paralyzing uncertainty to the system and harms people’s First Amendment rights
to receive and share information. These concerns are even more pronounced now
in light of technologies that make sharing and storage more accessible, and
allow important institutions like the Internet Archive to thrive."

~~~
tokenadult
_Lessig made this argument the center of his case, and redirected every line
of questioning with the Supreme Court justices back to this theory._

As a lawyer who used to be a judicial clerk for an appellate court, and who
has heard many oral arguments before that appellate court, I can't believe
that Lessig would muff up on this basic issue of legal argumentation. Argue
your preferred theory, sure, but also go along with any hints the court gives
you in its order calling for review of the case or in oral argument about what
alternative theory to use to PERSUADE THE COURT. The lawyer's duty to the
lawyer's client is to win the case, after all, and especially if you have any
factual basis for saying that a particular appellate decision would result in
actual real-world harm, in addition to being inconsistent with sound abstract
legal principles, SAY SO. I'm glad to see that Lessig is forthright about
acknowledging his mistake, and I wish him well the next time he has
opportunity to argue the issues dearest to this heart before an appellate
court.

~~~
barrkel
From what I understood, Lessig was looking for a broad-ranging principle,
rather than something specific to the case in question and its related harms.
He was overreaching.

~~~
wnoise
Agreed. In precedent based systems broad-ranging principles often arise after-
the-fact based on earlier, narrower-held opinions.

------
dpapathanasiou
And who would wind up owning those copyrights?

~~~
dpapathanasiou
Not sure why the negative reaction, but it's a serious question.

If pd copyrights revert, and the estate is not clear or no longer in
existence, what happens then?

A feeding frenzy of copyright trolls, or are there futures somewhere, in
anticipation of this happening?

~~~
ig1
It goes to the next-of-kin, regardless of whether they know about it or not.
Depending on jurisdiction if there's no next of kin ownership may transfer to
the government.

------
ylem
This is rather scary--How does this effect public domain code? For example, if
I release some public domain code, can someone else copyright it with a minor
variation and then stop me (and others who use the code) from using the
original code?

~~~
__david__
In the US you _can't_ put your code into the public domain. Every work you
produce is copyrighted and while you can assign copyright to someone else, you
can't "remove" it from a work. The only way for something to become public
domain is for the copyright to expire (which is practically never at this
point).

~~~
anigbrowl
Not so - you just have to make an overt statement that you are abandoning your
rights. For example, I hereby waive any and all copyrights in this Hacker News
comment, now and forever. Enjoy!

See paragraph 22 in this entertaining and interesting opinion about the
copyright status of user-created videogame levels for a more detailed
explanation; as far as I'm aware nothing has changed since then:
[http://ftp.resource.org/courts.gov/c/F3/154/154.F3d.1107.htm...](http://ftp.resource.org/courts.gov/c/F3/154/154.F3d.1107.html)

------
rflrob
As much as this does seem like a bad bill, Congress is specifically prohibited
from passing _ex post facto_ laws, so at the very least, "infringing"
copyrights that were later de-public domain-ed shouldn't be a violation. It
doesn't seem like EFF's statement that "those who have used the works could
now be required to pay hefty license fees" could possibly be constitutional,
although the fact that they couldn't use them in the future without paying
fees is a shame.

------
D3lt4
If this passes, I could easily see this abused.

~~~
jerf
"If"? It went into effect January 1st, 1995:
<http://en.wikipedia.org/wiki/Uruguay_Round_Agreements_Act>

I was surprised by that date too. I know things take time to work through the
courts, but wow. Apparently the case was originally filed in 2001.

~~~
_delirium
The timeline seems to be something like:

    
    
       2001: filed in district court
       2002: put on hold pending Eldred v. Ashcroft
       2003: reactivated with amended complaint
       2004: district court denies gov't motion to dismiss
       2005: district court grants gov't summary judgment
       2006: appeal briefed/argued in circuit court
       2007: suit partly reinstated by circuit court
       2008: circuit court denies gov't petition for rehearing
       2009: district court now rules in favor of plaintiffs
       2010: circuit court now reverses, dismissing suit after all
       2011: supreme court agrees to hear the case
    

The main weirdness is that each side has won once in each of the two courts,
so it's made a bunch of trips back and forth. That and getting tied up with
_Eldred v. Ashcroft_ for 2 years at the start.

