Re: What's your take on the Supreme Court Ruling

On 1/18/2012 9:31 PM, Richard Seltzer wrote:

> http://www.nytimes.com/2012/01/19/business/public-domain-works-can-be-copyri
> ghted-anew-justices-rule.html
>
> Does this mean that Congress now has the Court's permission to take foreign
> works that are now in the public-domain and put them back under copyright?
>
> Or does it mean that immediately/now those works are under copyright?
>
> If the latter, what are sites like Gutenberg and publishers who have
> republished such works in multiple ways supposed to do?

Stop.

I haven't yet had the opportunity to read the Court's actual ruling, but 
based upon what I have heard, the facts and reasoning are something like 
this:

In the United States a grant of copyright has long been considered a 
governmental privilege, much like a driver's license. At the same time, 
the United States has long been a bit -- independent -- in world 
affairs, first by circumstance and later by choice. Part of that 
independence caused us to grant different, and greater, copyright 
privileges to U.S. citizens than we did to foreign nationals.

When the U.S. movie industry realized that if it wanted foreign 
countries to respect U.S. copyrights the U.S. would have to respect 
foreign copyrights as well, it pressured the U.S. Congress to grant to 
those foreign copyright holders the same privileges that would have been 
available to them had they been U.S. citizens. Having reclaimed the 
moral high ground, MPAA could then insist that the Chinese and Indian 
governments do the same thing.

(Actually, I made up the bit about the MPAA. In 1994 the U.S. was being 
threatened by sanctions from the World Trade Organization if it didn't 
agree to treat foreign works the same way it treated domestic works. But 
that doesn't make as good a story.)

In this case, the plaintiff's sued the U.S. government, claiming that 1. 
granting this privilege to those copyright holders who had not 
previously enjoyed it exceeded the power of Congress under the Copyright 
Clause of the constitution, and 2. by restricting the plaintiffs' right 
to use the material they had been freely using but which was now covered 
by the copyright privilege it violated their rights to free speech. (I 
would have argued that it was an illegal ex post facto law, or maybe 
argued in favor of some sort of equitable estoppel, but that's just me).

It must be understood that there is really no longer any such domain as 
the "public domain". It can only be defined as a negative: it is what is 
left over after all copyrighted material has been removed. In every 
country which has fallen under the evil spell of the Berne Convention, 
/everything/ is /automatically/ copyrighted at the instant of creation, 
thus reducing the "public domain" to only those works old enough to have 
become irrelevant.

As to the first argument, the Court held that granting the copyright 
privilege to works which had previously had no protection (or whose 
privilege had expired) was not unheard of; it had happened on several 
occasions in the past. And while granting copyright protection to these 
/particular/ works did not serve to promote the "Progress of Science," 
Congress had the latitude to create a copyright regime that "overall, in 
that body's judgment, will serve the ends of the Clause."

As to the First Amendment claim, it should be noted that the First 
Amendment's protections of freedom of expression is not and never has 
been absolute. All expression can be subject to "time, place and manner" 
restrictions as necessary to protect the public good, and political 
speech is granted much higher respect than commercial speech. Were this 
not so, even basic copyright protection could be said to violate free 
speech.

In this particular case, "Nothing in the historical record, subsequent 
congressional practice, or this Court's jurisprudence warrants 
exceptional First Amendment solicitude for copyrighted works that were 
once in the public domain."

The bottom line:

1. Free speech does not give you the right to simply repeat other 
people's words. Other people's /ideas/, maybe, but not their words.

2. Copyright is a privilege, the grant of which is under the control of 
Congress. Congress is free to extend that privilege to anyone it wants 
on any terms it wants, at any time it wants, so long as it is not done 
with complete disregard for the constitution. An ex post facto grant of 
the privilege is no more harmful to the body politic than an a priori grant.

One of the great geniuses of the U.S. copyright law is that copyright 
enforcement is the responsibility of the copyright holder. Were I one of 
the principals at Project Gutenberg I wouldn't worry at all. First of 
all, the chance that PG has any foreign work subject to this "recapture" 
provision is probably very slim. Second, the chances that a foreign 
copyright holder subject to this recapture would even deign to look at 
Project Gutenberg as a threat to his/her monopoly on reproduction is 
even slimmer. Lastly, I am certain that if PG was served a take-down 
notice from one of these newly-minted copyright holders it would just 
remove the offending work and the whole thing would end right there.

There is no need to borrow trouble.


------------------------------------

------------------------------------------------------
Post a message:   ebook-community [[at]] *
Unsubscribe:      ebook-community-unsubscribe [[at]] *
Switch to digest: ebook-community-digest [[at]] *
Switch to normal: ebook-community-normal [[at]] *
Put mail on hold: ebook-community-nomail [[at]] *
Administrator:    ebook-community-owner [[at]] *

(* == yahoogroups.com)
-------------------------------------------------------Yahoo! Groups Links

<*> To visit your group on the web, go to:
    http://groups.yahoo.com/group/ebook-community/

<*> Your email settings:
    Individual Email | Traditional

<*> To change settings online go to:
    http://groups.yahoo.com/group/ebook-community/join
    (Yahoo! ID required)

<*> To change settings via email:
    [email protected] 
    ebook-community-fullfeatured-hHKSG33TihhbjbujkaE4pw@public.gmane.org

<*> To unsubscribe from this group, send an email to:
    ebook-community-unsubscribe-hHKSG33TihhbjbujkaE4pw@public.gmane.org

<*> Your use of Yahoo! Groups is subject to:
    http://docs.yahoo.com/info/terms/