And the Supreme Court continues its abasement to corporations

supreme courtby DonkeyHotey

Supreme Court Chooses SOPA/PIPA Protest Day To Give A Giant Middle Finger To The Public Domain
[Via Techdirt]

We’ve been talking about the Golan case, and its possible impact on culture, for years. If you’re unfamiliar with it, it’s the third in a line of cases, starting with the Eldred case, to challenge aspects of copyright law as violating the First Amendment. The key point in the case was questioning whether or not the US could take works out of the public domain and put them under copyright. The US had argued it needed to do this under a trade agreement to make other countries respect our copyrights. Of course, for those who were making use of those public domain works, it sure seemed like a way to unfairly lock up works that belonged to the public. It was difficult to see how retroactively taking works out of the public domain could fit into the traditional contours of copyright law… but today, on the day of the big SOPA/PIPA protests… that’s exactly what happened (pdf).

The ruling is ridiculously depressing. The Justices basically just keep repeating the mantra they first set forth in Eldred, that as long as Congress says it’s okay — and that the “fair use” and the “idea/expression” dichotomy remain — all is just dandy. They also claim that since the very first copyright law took works from the public domain and gave them copyright protection, clearly there’s nothing wrong with removing works from the public domain. This decision reinforces why the Eldred decision was a complete disaster, and just keeps getting worse. The Eldred ruling basically ignored the fact that copyright had changed entirely in a way that went against the First Amendment… by retroactively granting copyright extension. Now that ruling is being used to take works out of the public domain as well.


The case deals with material that used to be in the public domain, free for anyone of us to use for our own purposes. Copyright, as defined in the Constitution, is a balance between the needs of the creative types to receive recompense for their efforts and the needs of society to reuse and innovate these creations.

Works in the public domain had served their purpose for the creators and were now part of society.

Except that the Court has now determined that these public works can be taken back at anytime and placed under copyright again, providing moeny for people who were not even born when the works were created.

They even said that there is no loss to the public by this. They could perform the works before when they were in the public domain and they can still perform the works π they just have to pay. The fact that the court is unable to see the difference for society between works that can be performed for free and having to pay for the same works tells you something very important about this Court and its need to give corporations whatever they want.

Personhood – you got it.

Unlimited copyright – just ask.

All to make more money for corporations even as it harms the rest of us.

You can often tell which side is correct in a Supreme Court case by looking at the dissent. In many important cases, the assent is horrible, lawyerly reads while the dissent is crystal clear. I noted this when I wrote about the Citizens United case and compared it to Plessy v Ferguson of the Lochner era Court.

The assenting decision takes over 40 pages to present its case. The two dissenters take 20. Their argument – the point of copyright, as stated by the Court many times, “is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors.”

The statute before us, however, does not encourage anyone to produce a single new work. By definition, it bestows monetary rewards only on owners of old works— works that have already been created and already are in the American public domain. At the same time, the statute inhibits the dissemination of those works, foreign works published abroad after 1923, of which there are many millions, including films, works of art, innumerable photographs, and, of course, books—books that (in the absence of the statute) would assume their rightful places in computer-accessible databases, spreading knowledge throughout the world. See infra, at 10–13. In my view, the Copyright Clause does not authorize Congress to enact this statute. And I consequently dissent.

Pretty easy to understand, as the best dissents usually are. About a page to write this summary. It rewards those who have already been rewarded and prevents dissemination of works.

The rest of the judges took over twice as many pages to give their summary. And it is full of things like this:

(c)Petitioners also argue that §514 fails to “promote the Progress of Science” as contemplated by the initial words of the Copyright Clause. Specifically, they claim that because §514 affects only works already created, it cannot meet the Clause’s objective. The creation of new works, however, is not the sole way Congress may promote“Science,” i.e., knowledge and learning. In Eldred, this Court rejecteda nearly identical argument, concluding that the Clause does not demand that each copyright provision, examined discretely, operate toinduce new works. Rather the Clause “empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause.” 537 U. S., at 222. Nothing in the text or history of the Copyright Clause, moreover, confines the “Progress of Science” exclusively to “incentives for creation.” Historical evidence, congressional practice, and this Court’s decisions, in fact, suggest that inducing the dissemination of existing works is an appropriate means to promote science. Pp. 20–22.

Yes, the Supreme Court actually decided that ‘inducing the dissemination’  of public domain works by making us now pay for them is an appropriate means to promote science.

The dissent says that using this logic, the Congress could remove the King James Bible from the public domain and give the rights to publish it to a specific group who would then make the rest of us pay for access to the Bible. See, it is still available.

Brenner states “And I fear that doing so would read the Copyright Clause as if it were a blank check made out in favor of those who are not themselves creators.” We call those corporations.

The dissent says dissemination will be harmed. The assent says, no, they can still be disseminated, juts as long as people pay. That pay is as good as free as an appropriate means.

What in the world would be an inappropriate means? Allowing  entities, who had already gotten their legally entitled benefit for creating works, to regain control and continue to charge for those works only benefits the corporations. How is society helped at all?

Saying society still gets the benefits by continuing to pay, essentially forever, does not seem like a good contract for innovation and creativity.

Disney created tremendous works by using public domain works. If this attitude to copyright had existed – that as long as we can still pay for the work it benefits us – then NONE of Disney’s cartoons could have been made.

How many other Disney’s have we lost because Mickey Mouse is still copyrighted, almost 100 years after his first creation? I expect that this will be one of the cases that, along with Citizens United, defines the outright anti-humanity, pro-corproation aspect of the Supreme Court.

The Supreme Court bears responsibility for many of the problems we have with corrupt government, being part and parcel of the corruption. No one would call them Caesar’s wife.

This Court will, in my opinion, look as out of step with the world as the Lochner Court was. If we are still alive 50 years from now and still have a Republic to lead us.

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