[Infowarrior] - Court: Congress can't put public domain back into copyright

[Richard Forno]

Court: Congress can't put public domain back into copyright

A federal court ruled on Friday that Congress overstepped its  
authority back in 1994 when it put some public domain foreign works  
back under copyright protection. Such a move changes the "traditional  
contours of copyright" in the US, even if done to bring the country in  
line with its treaty obligations.
By Nate Anderson | Last updated April 6, 2009 9:30 AM CT

http://arstechnica.com/tech-policy/news/2009/04/court-congress-cant-put-public-domain-back-into-copyright.ars

In 1994, Congress jammed a batch of foreign books and movies back into  
the copyright closet. They had previously fallen into the public  
domain for a variety of technical reasons (the author hadn't renewed  
the rights with the US Copyright Office, the authors of older works  
hadn't included a copyright notice, etc.) and companies and  
individuals had already started reusing the newly public works. Did  
Congress have the right to put a stop to this activity by shoving the  
works back into copyright? On Friday, a federal court said no.
"Traditional contours of copyright"

1994's Uruguay Round Agreements Act (URAA) brought US intellectual  
property law in line with that of other countries. Section 514 of URAA  
better aligned US copyright law with the international Berne  
Convention, one of the earliest international intellectual property  
treaties. Though Berne had first been signed back in 1886, the US  
hadn't joined up until a century later, in 1988.

Part of Berne requires countries to honor copyright on foreign works,  
so long as those works remain protected in their country of origin.  
Before URAA was passed, foreign works still received copyright  
protection in the US, but only on US terms. This meant that works  
began to leave copyright and enter the public domain in the US even  
though some were still granted copyright protection in their home  
countries. After signing URAA, these works reverted into copyright in  
the US.

Lawrence Lessig and a team from Stanford have been arguing for years  
in Golan v. Gonzales (now Golan v. Hodler) that Congress overstepped  
its authority when it did this. A federal court disagreed and issued a  
summary judgment against Golan, a music teacher who had been freely  
using Prokofiev sheet music before it reverted back into copyright.  
But the 10th Circuit Court of Appeals said back in 2007 that the case  
should be reconsidered on First Amendment grounds. Last week, the  
federal judge who oversaw the trial changed his ruling and agreed that  
URAA violated the First Amendment.

How? In another famous copyright case also argued by Lessig (Eldred v.  
Ashcroft), the Supreme Court had found that Congressional copyright  
action could be overturned if it "altered the traditional contours of  
copyright protection." Lessig seized on this phrase, arguing that  
putting public domain works back under copyright was unprecedented in  
US law.

The Tenth Circuit generally agreed, which meant that the justices  
opened the door to a review of URAA's legality on First Amendment  
grounds. "Together, the public in general and these plaintiffs in  
particular have a First Amendment interest in using works in the  
public domain," noted the court in 2007. "In reliance on their rights  
to these works, plaintiffs have already performed or planned future  
performances and used these publicly available works to create their  
own artistic productions. By removing works in the public domain,  
[URAA] arguably hampers free expression and undermines the values the  
public domain is designed to protect."

In the new ruling, Judge Lewis Babcock conducted his First Amendment  
analysis and concluded that URAA did change the "traditional contours  
of copyright" in one important sense: it meant that the copyright  
sequence no longer moves only from protection to public domain.  
Indeed, at the whim of Congress, public domain works can now migrate  
into copyright. "Such an alteration is inconsistent with the copyright  
scheme as designed by the Framers and as implemented by Congress in  
the ensuing years," wrote Babcock.
Sweet vindication

Anthony Falzone, who heads up the Fair Use Project at Stanford and has  
been involved in the case, called it a "big deal" because "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."

Lawrence Lessig, was just as pleased, saying that he was "very happy  
and very very proud to report a big victory" in the case. Lessig  
titled his statement, "From the there's-no-way-in-hell-you'll-win-that- 
one department," a phrase he must have heard many time since taking  
the case. (He came in for similar criticism for the Eldred case,  
especially after losing at the Supreme Court.)

While further appeals are likely in such a prominent case, Lessig &  
Co. can at least take some momentary comfort from confounding the  
naysayers and finding the edge of Congressional authority to tinker  
with copyrights.