January 19, 2012

"A professor lost his long legal fight to keep thousands of foreign musical scores, books, and other copyrighted works in the public domain..."

"... when the U.S. Supreme Court ruled against him on Wednesday in a case that will affect scholars and artists around the country."
The scholar is Lawrence Golan, a music professor and conductor at the University of Denver. He argued that the U.S. Congress did not have the legal authority to remove works from the public domain. It did so in 1994, when the Congress changed U.S. copyright law to conform with an international copyright agreement. The new law reapplied copyright to millions of works that had long been free for anyone to use without permission.
It's really Congress's fault, but the Court might have saved us from this unpleasant legislative imposition. There were 2 dissenters, 2 of my favorite Supreme Court Justices, Stephen Breyer and Samuel Alito — one liberal and one conservative, which makes 2 seem like more than 2.
"Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit," declared the majority opinion, which was written by Justice Ruth Bader Ginsburg.

In a dissenting opinion, Justice Stephen G. Breyer, writing for himself and Justice Samuel A. Alito, faulted the Congressional action. "The fact that, by withdrawing material from the public domain, the statute inhibits an important pre-existing flow of information is sufficient, when combined with the other features of the statute that I have discussed, to convince me that the Copyright Clause, interpreted in the light of the First Amendment, does not authorize Congress to enact this statute," he wrote.
The case is Golan v. Holder. Here's the full text.


David said...

Like a lot of Supreme Court cases, this one involves a stupid law that is perfectly Constitutional.

edutcher said...

Above my pay grade, but, Ann, double check the first para of that quote.

Is it written badly or are there a couple of words missing?

Insufficiently Sensitive said...

There's got to be a parallel with property law, in which private owners cannot gain legal ownership of publicly owned property by invasion or adverse possession or any other chicanery.

The reverse is true - if the public tromps all over your south 40 unimpeded for a sufficient time, it automatically gains the right to do so forever.

So why hasn't the public, by long use of the 'formerly' public-domain works in question, gained a perpetual and irrevocable right to those works? Should Congress's after-the-fact legislation trump the long public use?

EDH said...

Clearer summary and analysis of the issue in the first several comments under the Chronicle article than the article itself.

Yea, commenters!

rhhardin said...

It's the wonders of rent-seeking.

Rent-seeking being the technical term for taking money without adding economic value.

Usually government and bribery figures in.

Levi Starks said...

Physical and Intellectual property are in 2 distinctly different categories. In the case of real property it's impossible for more than one person to possess the same 1 square foot of land. In the case of intellectual property once an idea leaves leaves your brain via your mouth or hand it's impossible to think that every current, or future living person will not eventually possess that property. So the question becomes simply a matter of monetary profit. How long am I entitled to reap a profit from an idea that originated in my head? If I produce a real product like Shoes, or Loaves of bread I'm required to produce additional stock on a regular basis. What is so special about an intellectual product that a person can produce one of them and subsist on it's value for the rest of their lives? or their estate? or what ever span of years or centuries a lawmaking assembly deems appropriate?

rcocean said...

Basically the SCOTUS isn't interested in enforcing the copyright section of the constitution. Further, Congress (as shown by SOPA) will do anything that lines the pockets of Disney and the big copyright holders.

rcocean said...

I noticed the chattering classes - including many Libertarians -seem very reluctant to attack this government monopoly that provides parasites unearned income almost forever.

Michelle Dulak Thomson said...

This thing is a huge deal in the classical music world, because the practical impact is that royalties are now owed on recordings of music that was in the public domain when the recordings were made. That means ... well, pretty much anything Soviet and post-1923.

Ann Althouse said...

"Is it written badly or are there a couple of words missing?"

I'm not seeing the problem. It is the quote from the article with no missing words. Makes sense to me.

edutcher said...

OK, the phrase, "makes the public domain, in any and all cases, a territory that works may never exit", just struck me as oddly worded.

Dust Bunny Queen said...

It might be instructive to have some examples of the types of 'copywrited' material that will no longer be freely available under this decision.

Otherwise, how can we know if we should be outraged or not :-P

Class factotum said...

How long am I entitled to reap a profit from an idea that originated in my head?

If it's a book or a song or a movie you wrote, then why not forever? Why shouldn't your heirs get the royalties? If you want your own royalties, write your own book.

Hunter said...

I wonder what the case law would be if the professor had "copy-lefted" those works before Congress passed this retro-active extension? That is, if they had been published under something like the Gnu Public License.

Joe said...

If it's a book or a song or a movie you wrote, then why not forever?

But it didn't just appear absent many other influences. Even artists who are revolutionary are very much influenced by those who went before.

The modern richness of everything from art to technology is thanks to people changing something, sometimes for the better and sometimes for the worse (which often makes someone want to make it better.)

An absolute intellectual property law would destroy art and innovation (and greatly enrich the legal and law-enforcement professions.)

Jason said...

We Don't have "absolute" intellectual property laws as it is. Which makes the rest of your argument bullshit.

Jason said...



Fuck off.