Terrible News: Court Says It’s Okay To Remove Content From The Public Domain And Put It Back Under Copyright

Warning: this one is depressing if you believe in the public domain. You may recall that last year, a district court made a very important ruling on what appeared to be a minor part of copyright law. The “Golan” case asked a simple question: once something is officially in the public domain, can Congress pull it out and put it back under copyright? The situation came about because of (yet another) trade agreement that pulled certain foreign works out of the public domain. A district court had initially said that this move did not violate the law, but the appeals court sent it back, saying that the lower court had not analyzed the First Amendment issue, and whether this was a case where the inherent conflict between the First Amendment and copyright law went too far to the side of copyright by violating the “traditional contours of copyright law.” Getting a second crack at this, the district court got it right — and was the first court to point out that massively expanded copyright law can, in fact, violate the First Amendment.

But, of course, it couldn’t last.

On Monday, the appeals court reversed the lower court’s ruling and said there’s no problem with the First Amendment because copyright law “addresses a substantial or important governmental interest.” This is, plainly speaking, ridiculous. The argument effectively says that the government can violate the basic principles of the First Amendment any time it wants, so long as it shows a “substantial or important government interest.” But that makes no sense. The whole point of the First Amendment was to protect citizens’ interests against situations where the government’s interests went against citizens’ interests. It should never make sense to judge a First Amendment claim on whether the government has “substantial or important” interests.

On top of that, the court basically said “Congress knows best” on this issue. Again, this seems to go against the entire point of the First Amendment and the important judicial protections of the First Amendment. The whole point of court oversight of Congress is because Congress doesn’t always know best. But here, the court has no problem deferring entirely to Congress:

deferential standard is warranted for two important reasons. First, Congress is
“far better equipped” as an institution “to amass and evaluate the vast amounts of
data bearing upon the legislative questions.” … Second, we owe Congress “an additional measure of deference out of
respect for its authority to exercise the legislative power.”

Except, as has been shown time and time again on copyright issues, Congress has done a terrible job amassing any data to support its continued and unstoppable expansion of copyright law. Just within the past few months we’ve seen the GAO — which is supposed to make sure that Congress is properly applying data — admit that Congress is flat out ignoring the actual evidence and agreeing with bogus studies from a few industries that is not backed up with any actual evidence.

Most worrying of all? The court says that it should keep out of this discussion because it involves international relations and international treaties. See why you should be scared to death of ACTA? The courts are effectively admitting that once you get these “international obligations” in place, the courts should mostly stay out of the discussion, even if it violates the basic tenets of US law. That’s downright scary. The court gives a lip service defense to this, saying that it can still review international agreements to make sure they abide by the First Amendment… but… for the most part, it’ll just defer to Congress.

Next up? The court actually relies on testimony about “losses” from an RIAA official as well as someone from the IIPA (a lobbying group made up of the RIAA, MPAA and other similar organizations):

In particular, American works were unprotected in several foreign countries, to
the detriment of the United States’ interests…. statement of Jason S. Berman,
Chairman and CEO of the Recording Industry Association of America… :”[T]here
are vastly more US works currently unprotected in foreign markets than foreign
ones here, and the economic consequences of [granting retroactive copyright
protection] are dramatically in favor of US industries.”)…. By some estimates,
billions of dollars were being lost each year because foreign countries were not
providing copyright protections to American works that were in the public domain
abroad…. (statement of Eric Smith, Executive Director and General
Counsel of the International Intellectual Property Alliance) (“Literally billions of
dollars have been and will be lost every year by U.S. authors, producers and
publishers because of the failure of many of our trading partners to protect U.S.
works which were created prior to the date the U.S. established copyright
relations with that country, or, for other reasons, these works have fallen
prematurely out of copyright in that country.”).

These are the same studies that the GAO — whose actual job it is to analyze these reports — dismissed as junk science. This is exactly where the courts should step in and note that Congress is not doing its job and is doing serious harm at the behest of a few small industry interests. What a travesty that this court couldn’t see that.

And, of course, the court continues to rely on clearly biased individuals who had a clear agenda, rather than a factual basis for their positions. It even quotes Jack Valenti’s ridiculous claim that if the US removed foreign works from the public domain, that suddenly China and Russia would start respecting US copyright.

Also incredibly frustrating, misleading and inaccurate is a small footnote, which asserts the commonly claimed excuses by the courts for why copyright law does not violate the First Amendment: that the “idea/expression dichotomy” and “fair use” make it so there is no conflict. But what’s frustrating in this footnote is that this particular court seems to suggest that so long as copyright doesn’t mess with those two things then there’s no First Amendment issue with copyright.

We note that copyright includes several “built-in” First Amendment
protections…. The idea/expression dichotomy ensures
that only particular expressions, and not ideas themselves, are subject to
copyright protection…. Additionally, the fair use defense allows individuals to
use expressions contained in a copyrighted work under certain circumstances,
including “criticism, comment, news reporting, teaching . . . scholarship, or
research . . . and even for parody.” … Section
514 does not disturb these traditional, built-in protections, and thus, such
protected speech remains unburdened.

But that’s wrong. Dangerously, ridiculously and constitutionally questionably wrong. Just because there are those two “valves” to hopefully keep copyright law from violating the First Amendment (and there are some very, very serious questions about how well either of them actually work), it does not mean that those are the only places where copyright law must be judged under the First Amendment.

In this particular case, a very serious issue was raised: works that clearly were in the public domain, and which some publishers were relying on as public domain documents suddenly are no longer in the public domain. If you have any respect at all for the core notion of copyright — which was originally supposed to be about getting more works into the public domain — the idea that you can then take works back out of the public domain is downright ludicrous. It goes beyond being a violation of the basic contours of copyright law. It goes against the very Constitutional principles behind copyright law — and does so in a way that is a clear violation of the First Amendment.

Which part of “Congress shall make no law… abridging the freedom of speech” does this court not understand?

All in all this is an incredibly frustrating ruling. It feels like the court didn’t actually want to address the admittedly difficult question of how the First Amendment and copyright law come into conflict, so it just punted and said “well Congress knows best, so it’s okay.” The case will almost certainly be appealed, potentially for an en banc (full appeals court review) or directly to the Supreme Court. So this most certainly is not over yet. But after a reasonable ruling last year to this year’s reversal, it’s definitely a step backwards for anyone who believes in the importance and sanctity of the public domain.

If you want to be frustrated, read the full decision below:

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