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

On 20/01/2012 06:16, Lee Passey wrote:
> 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?
>>      

> 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.
>    

;-) Well, Lee, I'm never in any doubt where you stand in the copyright 
debate. I'd like to put just one or two alternative views to points you 
make. This is to suggest that Berne copyright is a bit more positive 
than you believe.

> 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).
>    

Actually I would agree they were flag-waving when they might have done 
better with a bit of thinking.

> 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.
>    

Ahhhh; the grim copyright reaper cometh! ;-) I do not see the out of 
copyright/public domain issue as withholding works from everyone, or 
anyone. Even many public domain works are unavailable, or not available 
free, or not available without some conditions [I talk of ebooks more 
than print here]. And very many works are out of print; still not 
available even as POD. There is no magic wand here, no 'sudden death' of 
copyright or not copyright.

> 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."
>    

It depends how you see the end of 'progress of science' [from the 
earlier Queen Anne Act] being best served. If the object is to encourage 
contributions, then the contributors need some attraction *in 
competition with other methods of remuneration*. This both alters with 
the general increase in prosperity, and additionally needs to offer a 
total package that takes into account the real risk of poor or no income 
- even negative if expenditure is more than time. And time expenditure 
can also be shown to be a cost.

> 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.
>    

One might add that 'Free Speech' is misunderstood a great deal, and the 
issue of copyright does not impinge on free speech in the US or anywhere 
else.

> 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.
>    

Not their written original words. Nor speech broadcast through the 
media. But I don't think face to face conversations are copyright. There 
is no way ideas can be copyright; it is not practical - not possible.
> 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.
>    

Copyright is a contractual system of term control of original works 
which is in the gift of governments on behalf of their nations; the 
object is to strike a balance between creator and user which benefits 
society as a whole.
> One of the great geniuses of the U.S. copyright law is that copyright
> enforcement is the responsibility of the copyright holder.

That is one of the things that is not unique to the US. Protection of 
one's property falls on the owner in most things and most places.

> 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.

And I end on another note of [more or less] agreement [except rather 
than 'newly-minted' they are dug up from an early grave for a little 
Frankenstein shocking...].

Joseph Harris


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