Picture yourself as an author, producing an article for a magazine or even a book for publication. In order to make your point or get the particulars of a scene across, you make use of prose from a literary work literally decades old, a work that’s firmly in the public domain. You send the article or manuscript to the publisher, they like it, they print it, you start collecting royalties – all is good. Two months later you receive a bill and a politely but firmly-worded letter from a lawyer representing the copyright holder of the work you referenced informing you that the work has been brought back under a copyright and, since you’ve used these materials in your work, you are required to pay a licensing fee for its use. And you’ll have to continue to do so if you want to continue selling your book or article.
Now, wait a minute, you say, that work was in the public domain! It’s not under copyright! Oh, it was in the public domain, you’re told, but it’s been taken back out and it’s under copyright now. Oh, and make that check out to Mister….
What I’ve just described is not some kind of police-state chain-yankage, it’s a very real, very likely consequence of the recent Supreme Court ruling in Golan v. Holder, handed down this past week. (SCOTUSblog has their usual wonderful coverage of the Supreme Court’s actions in this case right here in case you’d like to look it up.) The Washington Times editors made their dismay with this decision known on Friday and called for Congressional action to start reigning this in:
Members of Congress had been promoting these bills at the behest of Hollywood. Motion-picture and record studios have always feared the march of technology. In 1976, Universal and Disney sued Sony to try to stamp out the videocassette recorder. In 1999, the industry launched lawsuits to stop peer-to-peer file-sharing software and music downloads. Tinseltown has been wrong at every step. Once they resigned themselves to adapt to the market place, studios made billions on sales of videotapes and music downloads.
That’s why it’s time Congress told Hollywood to take a hike. Copyright law has strayed far beyond the original intent of the Founders. Justices Stephen Breyer and Samuel A. Alito Jr. made this point in their dissent to Wednesday’s Golan v. Holder decision. They cited correspondence between James Madison and Thomas Jefferson to show copyright was meant to be a strictly utilitarian device for the promotion of the arts and sciences. “The statute before us, however, does not encourage anyone to produce a single new work,” the justices wrote. “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.”
The logical consequence of the majority’s decision and the ever-expanding copyright push by Hollywood’s congressional fan club is that one day we could be forced to pay a toll to read documents as seminal as Lincoln’s Gettysburg Address, just as current law requires paying a tithe to the family of Martin Luther King Jr. for the privilege of using his famous speech on his national holiday.
I’m afraid I have to agree. I’m all for protecting the rights of authors, entertainers, musicians, and artists of all stripes to profit from their work. But, all due respect to the Justices, the clear meaning of the language in the Constitution was that there was to be a period where that profit was to be protected and then a release of those works into the public domain. According to SCOTUSblog’s analysis, the arguments made to the Court that Congress did not have the authority to put back into effect a copyright on a work that had been previously in the public domain all failed:
Those were the arguments that drew no support from the Court majority. Noting that the challengers had argued that the Copyright Clause posed “an impenetrable barrier to the extension of copyright protection to authors whose writings, for whatever reason, are in the public domain,” the Court answered by saying: “We see no such barrier in the text of the Copyright Clause, historical practice, or our precedents.” Neither the words of that Clause, nor the way it has been understood since the first U.S. copyright law was passed by the First Congress in 1790, supports the claim that the public domain is “inviolate,” the opinion declared.
I would argue that to reach that conclusion, you have to ignore the meaning of the term “public.” That term, defined as “of, pertaining to, or affecting a population or community as a whole,” can be characterized in logic as a set that contains all people. That’s all people. Within the scope of the legal boundaries of the Supreme Court of the United States, that’s all people governed by the laws of the United States and obligated to follow those laws. Once something is released into the public domain, that effectively means that it’s owned by all off us, individually and collectively. All of us have the right to make use of that material without further requirement to remunerate anyone – it’s ours. SCOTUSblog says further:
No one, the Court said flatly, obtains any personal right under the Constitution to copy or perform a work just because it has come out from under earlier copyright protection, so no one can object if copyright is later restored.
Again, only if you ignore the concept of what “public” means. In the 1st and 2nd Amendments (and elsewhere, I’m just using these 2 as examples) reference is made to rights of “the people.” As the Court held in Heller v. DC the rights referred to in the 2nd Amendment are individual rights, just as those referenced in the 1st are individual. Each and every member of “the people” holds the right to keep and bear arms and the fact that the amendment refers to the larger group does nothing to diminish that. So, too, the fact that the term is “public domain” does not somehow rob an individual of his personal right of ownership of anything within the domain of the “public,” of which he is a member. Indeed, what is the “public” if not a collection of individuals?
This is an incredibly dangerous precedent. Is it really that far-fetched to imagine that the companies responsible for the creation and development of all manner of medicines might somehow re-institute their copyrights on the forumlas, rendering any generic copy of their drug illegal unless licensed? You know what happens to the cost of drugs, then, of course. Or, perhaps, AT&T, as the decendent company of Bell Labs, might get the copyright on the transistor re-engaged. Every single electronic device in widespread use today depends on transistors. What do you think happens to all of that when the companies making all of these things have to suddenly pay royalties and license fees on everything they produce?
Like the Kelo v. New London decision, I feel the Supreme Court has just abdicated their judgement when they made this decision. Clearly, Congress needs to address this in a fashion that not even the slickest lawyer can turn onto its head.