US District Court: Restoration of Copyright in Public Domain Foreign Works Is Unconstitutional - Upd

US District Court: Restoration of Copyright in Public Domain Foreign Works Is Unconstitutional - Updated

www.groklaw.net

The US District Court for the District of Colorado has just granted a motion for summary judgment in Golan v. Holder you will want to know about. It is a very big deal. Anthony Falzone, Executive Director of the Fair Use Project at Stanford's Center for Internet and Society, who led this effort, says, "It is the first time a court has held any part of the Copyright Act violates the First Amendment and the first time any court has placed specific constitutional limits on the government's ability to erode the public domain." I read it as saying that nothing, not any treaty, not even the Berne Convention, can trump the US Constitution.

That's what I love about it.

(visit the link for the full news article)

Now, I know this is only Colorado. And chances are the Federal Courts will at least attempt to destroy the ruling.., after all the transnational corporate interests can't have a trifle like national sovereignty and one nation's concept of public domain ruin their business model. But I can't help but feel a little encouraged when on occasion I see a justice actually accept the Constitution at face value.

The article is a bit technical from a legal perspective, but the truth is, we (as in the collective public) have been losing access to a more and more legally entrenched corporate design to 'own' rights to nearly everything they can get their legal 'hands on'.

.... a Federal District Court in Colorado has held unconstitutional a portion of the Copyright Act, holding that 17 U.S.C. §104A, which restored copyright in certain foreign works that had previously fallen into the public domain, cannot survive First Amendment scrutiny. The government defended the statute by arguing that such restoration was required by Article 18 of the Berne Convention, the international copyright treaty that the US joined in 1988, but the court in Golan v. Holder today held that the First Amendment trumps such treaty obligations, and that the statute impermissibly interferes with the free speech rights of the plaintiffs, "artisans and businesses that rely upon works in the public domain for their trade."

For those of you who may not realize it; the decision affects all of us, especially those of us who exchange ideas on web-sites just like this.

MM

www.groklaw.net
(visit the link for the full news article)

This is a subject that I'm very interested in. I believe that in the future, we'll continue to see a 'rethinking' of IP rights, and it will be forced to come to a head because of our living in the Information Age.

I somehow missed this story, thank you for bringing it to my attention.

Originally posted by Maxmars

Now, I know this is only Colorado.

This makes me proud to live in Colorado.

This is a great find!

I would hope that this will be a turning point for many other states who have a new found love of their sovereignty.

Government is to serve the people not the corporations.

reply to post by xman_in_blackx


I agree wholeheartedly.

Americans, and indeed people all over the world, have dropped their guard, and allowed their leaders to 'rule' rather than obey.

As long as the states remain firm, the law must be obeyed.

Only the Federal governments owners seem to operate contrary to that mandate.

Nice to read something good for a change, thanks!

Big picture yes.

On another note. Tesla. Free Energy.

There are many, many pattens copywrites, etc that have been bought, stolen and harbored under endless protection laws to keep out competition.

These laws were designed to give you a running start, not to control it the rest of time.

If it helps reafirm no power over the Constitution, Great!

Thank goodness. You hear all this talk about how our constitution is being destroyed... and we have some good news... finally.

It seems like a sour note to relatively good news, but the truth of the matter is this ruling does not protect us from the Federal Government's "right" to place things previously in the public domain BACK into protected status.

It only means that if someone had been using that particular material ina commercial way prior to this ruling, they cannot be sued or penalized, and they can continue to use it despite its' on-and-off-and back on again protected status.

The Federal government retains the right to remove things from public domain; it just won't automatically criminalize those who had used it, and are continuing doing so.

A small "plus" for sure, but I think the real party should start when the government recognizes that they are not authorized by the people to 'return' public domain material BACK to protected status..... simply because someone wants to make more money, after having failed to apply for copyright protection to prevent it from entering the public domain....

... like the now copyright protected "Happy Birthday to You" song which is a perfect example of traditionally public intellectual property - now protected for the benefit of Hallmark.

[edit on 7-4-2009 by Maxmars]

how does hallmark have the copyrights for "happy birthday to you"?

The person that penned the song retains copyright, unless they have sold that right, if not, then it is public domain.

I guess copyright works differently in Australia then in the US, here your work is automatically copyrighted from the moment you pen your great works, you do not apply for copyrights, but you can sell your copyright.

Originally posted by LenGXV6
how does hallmark have the copyrights for "happy birthday to you"?

The person that penned the song retains copyright, unless they have sold that right, if not, then it is public domain.

I guess copyright works differently in Australia then in the US, here your work is automatically copyrighted from the moment you pen your great works, you do not apply for copyrights, but you can sell your copyright.

Thank you for bringing that up... It is incorrect, I meant to say AOL - not Hallmark (sorry).

It's kind of interesting really, how I came upon that discovery.

Some years ago I noticed, on almost every new television program aired in the US, whenever a scene would come up where the actors were portraying a birthday scene, they didn't sing "Happy Birthday to You" anymore, which I thought was weird. After all every show I saw as a kid would use the tune during birthday celebration scenes.

I couldn't understand the 'change' so I did a bit of research...

Here's a small piece of an interesting article on the subject....

((but please note: NO ONE KNOWS WHO PENNED THE WORDS TO "HAPPY BIRTHDAY TO YOU"... SO THE QUESTION REMAINS, HOW DID IT GET "BOUGHT"?))

The Chicago-based music publisher Clayton F. Summy Company, working with Jessica Hill, published and copyrighted "Happy Birthday" in 1935. Under the laws in effect at the time, the Hills' copyright would have expired after one 28-year term and a renewal of similar length, falling into public domain by 1991. However, the Copyright Act of 1976 extended the term of copyright protection to 75 years from date of publication, and the Copyright Term Extension Act of 1998 added another 20 years, so under current law the copyright protection of "Happy Birthday" will remain intact until at least 2030.

....

Who does own the publishing rights to "Happy Birthday to You"? They were acquired by a New York accountant named John F. Sengstack when he bought the Clayton F. Summy Company in the 1930s; Sengstack eventually relocated the company to New Jersey and renamed it Birch Tree Ltd. in the 1970s. Warner Chappell (a Warner Communications division), the largest music publisher in the world, purchased Birch Tree Ltd. in late 1998 for a reported sale price of $25 million; the company then became Summy-Birchard Music, now a part of the giant AOL Time Warner media conglomerate. According to David Sengstack, president of Summy-Birchard, "Happy Birthday to You" brings in about $2 million in royalties annually, with the proceeds split between Summy-Birchard and the Hill Foundation....

Happy Birthday to You

[edit on 8-4-2009 by Maxmars]

I think I might look into the differences between Us and Aus copyright laws.

It would appear that in the US you have to apply for copyright, in Aus it is automatically given!

But all this must wait until tomorrow, I am still waiting on my broadband to be reconnected, oh how I hate dial up.