Supreme Court Affirms Broad Congressional Authority to Offer Intellectual Property Rights for Public Domain Works

By Dennis Crouch

Golan v. Holder (Supreme Court 2011)

As widely expected, the Supreme Court today affirmed a lower court ruling that the "Copyright Clause" of the U.S. Constitution does not prevent Congress from providing copyright protection to public domain works. As also expected, Justice Breyer (joined by Justice Alito) dissented from the 6-2 decision.

The case was filed after Congress restored the copyrights to a thousands of foreign-authored works that had fallen into the public domain based upon the authors' failures to observes pre-Berne Convention formalities such as registration and notice ©. Many of the restored works had been known to be in the public domain for decades before the 1994 passage of the statute – the Uruguay Round Agreements Act. (Picasso's 1937 Guernica painting reproduced without a license below is an example of a work whose copyright was restored by the statute). The Supreme Court opinion is written as a further extension of the 2003 Eldred decision that affirmed Congressional power to extend copyright by an additional 20-years as part of the Sonny Bono Copyright Term Extension Act (CTEA). I had suggested to my students last semester that the best conceivable outcome for petitioners would be that the Court would determine that heightened scrutiny should apply to adjudge the free speech impact of the expansion of copyright law. However, the court also rejected that path.

The Supreme Court opinion authored by Justice Ginsburg rejected the three primary arguments made by petitioners:

  1. The Court held that allowing works from the public domain to be later copyrighted does not result in the potential for perpetual copyright in violation of the "limited terms" language of the Constitution. In its opinion, the court rejected any notion that the public has a "vested" right in works from the public domain. "Once the term of protection ends, the works do not revest in any rightholder. Instead, the works simply lapse into the public domain."
  2. The purpose of copyright law – to "promote the Progress of Science" – should be broadly interpreted to include both promotion of the creation of new work as well as promotion of knowledge and learning more generally. And, inducing of the dissemination of existing works is a permissible means to promote science. In addition, providing for access to foreign markets by acceding to treaty obligations can also provide an incentive for creation of new works and therefore promote the progress.
  3. In Eldred, the free speech rights embodied by the First Amendment to the U.S. Constitution do not limit Congress from modifying copyright law within its "traditional contours." Petitioners argued that the removal of elements from the public domain was outside of these traditional contours and that, under Eldred, the Supreme Court should use a heightened level of scrutiny to determine whether the new law offends free speech concerns. The Court rejected that analysis based upon its conclusion that Congress has, on several occasions, removed elements from the public domain and that, therefore, this action is within the traditional contours of copyright policy. In addition, the Court held that the impact of the particular law at issue was simply to place the foreign works in the copyright position that they would have occupied if the current copyright regime had been in place at the time. From that perspective, the new law fits well within the traditional contours of copyright law.

Impact on Patent Law: Copyright and patent share the same constitutional underpinnings and each is purposed to "promote the Progress" of their respective fields. This leads me to the conclusion that the reasoning in Golan would be equally applicable to Congressional expansions of patent law. In its decision, the Court explicitly refers to historic patent restoration bills as "informing" the inquiry into the scope of the clause as it applies to copyright. The converse should also be true. Thus, perhaps Congress would have authority to extend patent terms based upon a patentee's provision of data additional testing data or its promise to manufacture the product in the US.

An interesting caveat comes from the Court's 1996 Graham decision. That opinion includes the line that "Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available." In distinguishing that line, the Court wrote that the passage does not speak "to the constitutional limits on Congress' copyright and patent authority" but instead it addresses "an invention's very eligibility for patent protection." (quoting Eldred). The seeming distinction here is that Congress has more latitude in determining patent (and copyright) term or duration and less latitude in determining subject matter eligibility.

In dissent, Justice Breyer wrote, inter alia, that the "newness" requirement has always been a necessary and fundamental element of intellectual property (copyright and patent) protection. This newness requirement is offended by allowing copyright protection to be offered for works created long ago and already known to be in the public domain.

The political setup of this case is somewhat interesting because the government's pro-property position could be conceived as the conservative approach while Golan's more liberal position is suggesting that anyone should be able to use these works without payment to the creator. At the same time, the liberal Golan's legal argument was based upon the traditionally conservative suggestion of strong Constitutional limits on the powers of the federal government.

Note:

  • At several points in this article I would have linked to Wikipedia, but the site is not generally available today because of its ongoing protest against an expansion of intellectual property law that would require services such as Wikipedia and Google to remove links to sources of pirated material.

167 thoughts on “Supreme Court Affirms Broad Congressional Authority to Offer Intellectual Property Rights for Public Domain Works

  1. the point I was making“…

    …missed by a mile.

    Just like I told you.

    You introduce a concept of listening that does not fit into the discussion of copyright and try to draw some legal point from your fantasy introduction.

    It’s a clear ‘whiff.’

  2. Ned:AI, where I am going is this: once you broadcast your website into the public domain, you have lost your chance to charge for access.

    AI: No you have not. In what way do you think I have I lost my ability or chance to charge?

    Ned: While you may have have copyright rights to the content of your website, you can lose them by waiver and abandonment.

    AI: Not true. I can publish a poem in a book and have it sit on a book shelf in a library for 20 years and not lose my copyright. Same can be done with a web site.

    Ned: “I would say that once you have intentionally broadcast your work into the public domain, you have waived your right to a fee for access.”

    AI: Yes, you would but does Congress? If so cite the statute.

    ::Ned Silenced By The Call for a Citation::

  3. Ned I just want to point out that there is a BIG difference between being an Actual Inventor and legitimate business owner, like my self, and someone like you that twist, obfuscates and conflates the law to advance your employers agenda.

    I merely seek to know what the current law is so I can follow it.

    You Ned Heller, dishonestly pretend to not know what the law is to subvert it!

    If the SC tells me business methods are upheld as statutory subject matter then to me they are statutory subject matter, whether I like it or not.

    If the SC tells me processes are an independent category then to me processes are an independent category for which I may receive a patent, whether I like it or not.

    You on the other hand post your own opinion of what you and/or your masters want the law to be then try and conflate that opinion for what the law actually is.

    And to further insult the intelligence of the patent community you dive into hypotheticals and what if scenario’s instead of simply acknowledging the current case law that says you are wrong to begin with. And that my well paid friend is why you have earned the online reputation as

    “Dishonest Ned, the Shill from Silicon Valley”

    And that’s all I have to say about that.

  4. We have competing rights.

    We really shold be accurate on this. We have competing beliefs. The rights are established by law.

    You may disagree with the law, but that doesn’t change the law.

  5. whether the owner of the copy rightfully made can dispose of it without the copyright infringement.

    Once again, my proviso must be considered.

    Beyond that, if your “disposal” involves making another copy or possibly distribution, then your talking needs to involve an appreciation of copyright law (including the more nuanced copyright exhaustion doctrine).

  6. Copyleft, I responded with my concerns in another post.  

    I think the whole purpose of copyright law is to provide incentives for creation of works in the first place and to provide incentive for their publication and distribution.  Balanced against these goals is the right of every citizen to be free to use his eyes and ears, to use our roads, parks and other public places, to have reasonable access to information including free access to the internet, and to be able to share and discuss information with others. 

    We have competing rights.

    The problem I see with the current legislation is that it seems to move in a direction of reducing the rights of citizens to have reasonable access to information.  The proper subject of copyright legislation, I believe, is on the copier, the distributor, the broadcaster whose illegal actions harm the author/owner.

  7. that one might see if one is doing no more than what one otherwise has a right to do, such as by standing outside a drive-in theater and watching the movie, is quite another thing

    Ned, I do not believe that anyone is arguing for the postion that you have anunciated.

    I admit that I cannot follow your argument or who you are arguing with. You may think it not beyond the realm of reason to ask the question, but it appears much like the downtown street corner prophets – you are asking the wind and speaking for your own benefit, and frankly, speaking out of any recognizable context of discussion on this blog.

    But either way, my responses to what I do see and hear should be taken to heart. Is the question really one of copyright fee to access the internet (whatever you might define as “access the internet”)? If that is what you think my postion is, then you have not been paying attention.

  8. Copyleft, the point I was making is in response to a prior post that listening to a work was not the subject of copyright because it did not involve copying.

    I know Congress can control performance rights as a kind of neighboring right.   But whether that can constitutionally extend to controlling one's right to listen to copyrighted music, to read copyrighted books, to watch copyrighted videos that one might see if one is doing no more than what one otherwise has a right to do, such as by standing outside a drive-in theater and watching the movie, is quite another thing.  Imagine that Congress could control access to information so that only the well off could afford it, would that be constitutional?

    Can one tell a citizen that he has to pay the government some copyright fee just to access the internet?  You have to be kidding me.  Yet this whole model is the way radio and TV was and still is to a great extent provided to the public in Europe.  So it is not beyond the realm of reason to ask the question.

  9. Regarding the exhaustion doctrine and copyrights, whatever it is, it extends to a copy that is rightfully made under the US copyright.  I think that that extends to copies made under the fair use right.    We are not talking about getting into competition with the copyright owner.  All we are talking about is whether the owner of the copy rightfully made can dispose of it without the copyright infringement.

  10. Anon, on commingling:  keeping secret is a concern of both the patent and copyright laws.  I do see that allowing one to patent trade secrets promotes public disclosure.  But allowing one to keep secret and then later patent promotes the secrecy in the first place.  

    I will agree with you to this extent:  that setting the balance of incentives to disclose is entirely within the discretion of Congress.  Setting term, so long as it is not indefinite, is within their purview as well.  

    So the only thing we have left is whether allowing an applicant to keep his invention secret in any way makes indefinite the length of protection of an invention.

    It may well be, that the issue has been decided.

  11. I think they will follow Pennock, as it was written by Story.

    Ned.

    Stop.

    Listen.

    Once again you post as if something will happen.

    Too Late.

    Golan is out.

    The Supreme Court did not follow Jefferson, Story and Hand.

    It is too late to follow Pennock.

    Pennock cannot stand in view of Golan. See my 1:24 post – the essence of “make the discovery public” and “free use” is gone. That essence is no longer reviewable under a Constitutional question because Golan says exactly that Congress has the power to make that happen.

    Congress has made that happen (for copyrights).

    It is a done deal.

    Further, you are still co-mingling non-patent term (Trade Secret) and patent term (well, patent) as if they can be co-mingled. They cannot be.

    Golan means that if Congress changes the rules to allow patenting of prior Trade Secrets, there is nothing in Pennock to pin your hat on for the Supremes to say Congress is wrong.

    In fact, this goes to the heart of our previous disagreement over Pennock, wherein I posited that Pennock had a much larger deferment to Congress for setting the rules than you would agree to.

    You are still holding on to Pennock for:
    a) something Pennock did not stand for, and
    b) even if it did – for arguments sake – it has now been abrogated by Golan.

    As I posted – the deed is done. Your “when” has happened. To see, you only have to open your eyes – the decision is right in front of you, right now.

  12. What if Congress passed a law making blinking a copyright infringement?

    What if Congress passed a law making speeding a copyright infringement?

    Ned, please make your what-if’s in line with what the law covers. Hypotheticals too far astray are not useful.

  13. Is allowing someone to listen to your copy copying?

    Ned, the answer to your question is no, allowing someone to listen to your copy is not copying.

    But you are delving into performance, which has its own wrinkles. Expecially if you are using some modern equipment to listen to the copy (which may involve copying – think upload to a MPG player). Also, as indicated, distribution issues may also arise (think internet as a delivery mechanism).

    Thus your questions may soon start getting into some technical exceptions (i.e. copying for player format may be allowable) and level of detail that needs careful and precise discussion (for example, see the post by David Winters, a practicing attorney, who uses as an example a performance unfixed in tangible media – too sloppy).

  14. I think we may be talking past one another.

    But, if one has the legal right to make the copy, why can’t one sell it?

    Your one true copy is what you can sell.

    I admitted as much with the provisio added twice.

    A copy of that copy is something that you do not have the legal right to make.

    In addition, the doctrine of exhaustion for copyrights is more nuanced than the doctrine for patents. I am not ceertain that I can (or more to truth, am willing) to spell out the differences over a blog.

  15. But, if one has the legal right to make the copy, why can't one sell it?

    We have a Supreme Court case on point, albeit involving prior user rights.  Items made under a prior user right are immune from the patent or copyright under the doctrine of exhaustion.

  16. Ah, hah!  Listening is not copying and therefor not the proper subject of copyright laws.  Hmmm.  

    Now, please answer me this:  Is allowing someone to listen to your copy copying?

  17. Anon, we all thought that "presumption of validity" would not result in "clear and convincing."  But once the it became known to the Supremes who wrote the case supporting "clear and convincing," Cardozo, they were deferred out of respect.  

    Jefferson, Story, and Hand are the founding fathers of patent law.  The Supreme Court has always given their views great weight.  I think they will follow Pennock, as it was written by Story.

    Golan was about the pubic domain issue. Limited times was the issue in its prior case on term extension.  I do not agree that the court has granted Congress complete carte blanch for it to grant indefinite protection by combining trade secret protection and patent protection.  But we shall see.

      

  18. So says the ivory tower anti patent academic that has never run a business or invented a single thing in his life.

    Actually, I think that’s what you said, AI.

  19. To answer your first question, I do need to reiterate what I neglected to include in my first post:

    I realize that I should have distinguished a true secondary market (selling the one true copy is not at issue and is not what I meant)…

    Selling anything other than that one true copy means that you have made a copy to sell.

    That is the violation. Why? Because that is the law (we could also throw in discussions of distribution if we wanted to).

    Your further questions resolve back to treatment of a one true copy, which are not pertinent for copyright law questions. I have no interest in pursuing that line of thought.

  20. IANAE “All products are worthless, and the economy would completely grind to a halt without the all-powerful jingle, the only contribution of any value that anybody has ever made to the economy or to society.”

    So says the ivory tower anti patent academic that has never run a business or invented a single thing in his life.

  21. For example, you may buy my nice REAL office chair someone made. But after you sit your duff on it no money is going to be made from it. And that chair will wear out. Were as my frivolous song that made you pay attention to that chair and come in to the store where it could be sold to you, will keep selling chairs as long as the jingle is played. And when that commercial is done the song will be used for someone and something else.

    There you have it. From the figurative mouth of an “actual inventor”. All products are worthless, and the economy would completely grind to a halt without the all-powerful jingle, the only contribution of any value that anybody has ever made to the economy or to society.

    Listen up, actual inventors. Quit inventing real stuff and start writing jingles. Let’s get this economy rolling again.

  22. “Any modern piece of electronics would be infringing so many patents from the past that it just couldn’t be made and sold at a profit.”

    Of course you could make a profit. You just have to pay a royalty to those that invented and/or own the IP that makes it possible for you to make a profit. Now if you don’t wanna pay then invent your own “electronics “.

  23. Yes it is a silly question because listening has no intersection with copying. “Internet,” on the other hand, is rife with copying.

    Your first step misses by a mile.

  24. DAVID WINTERS: “The rest of the creators, the ones who make REAL stuff, stuff that is really useful, get paid only once for their products. Why should frivilous “artists” be treated differently?”

    AI: Because your so called “REAL stuff” most likely will not generate any revenue that contributes to our economy, and will certainly wear out. Whereas you can use the so called frivolous stuff to make money and therefore you should pay for that privilege.

    For example, you may buy my nice REAL office chair someone made. But after you sit your duff on it no money is going to be made from it. And that chair will wear out. Were as my frivolous song that made you pay attention to that chair and come in to the store where it could be sold to you, will keep selling chairs as long as the jingle is played. And when that commercial is done the song will be used for someone and something else.

    And that my friend is America and why we are great! And the creators and Actual Inventors of the world are tops!

  25. When the issue is addressed by the Supreme Court, they will have to address Pennock.

    No Ned, there is no future “when” – “when” has happened.

    In a sense, the issue has now been addressed by the Supreme Court in Golan. The Supreme Court has compeltely punted authority of the type necessary to Congress. That’s the big deal with Golan.

    That’s why I recommended that you read what the Court has actually done, and not just the justification for why they have done what they have done. Depending on “extension of term” as the be-all and end-all of this decision misses the monumental impact of what this decision actually means.

    I was not trying to be rude by suggesting that your not seeing this conflict is the greater concern. Clearly, Pennock cannot stand given Golan, regardless of who wrote Pennock and regardless of who was on the court for Pennock.

    The deed is done (at least according to my preliminary read).

    I will be re-reading Golan this weekend, but I do not expect to change my view too much.

  26. DAVID WINTERS: “Petty songs, poems, videos, and movies contribute very little to our economy, and, arguably, very little of benefit to our culture. Economically, they hardly appear on the charts at all…and rightfully so.”

    David, our capitalist system is contingent up on marketing and advertising. And with out popular music, lyrics, and now video clips, in commercials and advertisements, very little if any product would be sold.

    Furthermore we need processes for manufacturing, marketing and distributing those products in an efficient manner in order to meet the demand created by the “Petty songs, poems, videos, and movies”, in our advertisements. Thus, Process Patents are equally crucial to our economic system.

    Take away IP rights, including process patents and your so called REAL stuff will rot on warehouse shelves, if it ever gets made. And while you can sit smug and thumb your nose at Hollywood Elite, you probably won’t be able to afford to eat.

  27. No so silly at all. In fact, I would suggest that it would be unconstitutional for Congress to even try.

    But, while we see the relative insanity of trying to sue people for listening to a broadcast, this became the model in Europe which required people to pay for the privilege of listening by controlling access to radios.

    Such thinking is alien to Americans. We would be offended by the attempt to restrict our freedoms. It is really the basis for the BetaMax case; and is why there exists a civil revolt in America against Hollywood.

  28. Ned,

    That’s a silly question.

    Refresh what is actually involved in copyright matters please.

  29. Actually, the only thing that is proposed as a change to the criminal provisions is to elevate “public performances” from misdemeanor to felony. This is not at all unexpected given that streaming is becoming ubiqitous as a means of live broadcasting.

  30. Good discussion, Anon.  

    When the issue is addressed by the Supreme Court, they will have to address Pennock.  Most beleive that they would have to overrule Pennock to allow a trade secret user a patent.  Given who wrote the opinion and who was on the court, I think this unlikely.  

  31. David,

    I feel that you are more than a bit off on a few items:

    Intellectual property (with the distinct exception of trademark) is purely a creation of arbitrary statute.

    So is real property (or at least the ownership law surrounding it) – and trademark is no exception to the arbitrary statute designation either. In essence, all law is a creation of arbitrary “statute.”

    As a matter of natural right, if I hear somebody whistle a tune, then I can learn it and whistle it, too, as I stroll along. But, the basic principle of copyright statutes is the belief that I can be rightfully constrained, essentially forever, from whistling that tune because somebody else dreamed it up.

    Copyright does not apply to the whistled tune because it was not fixed in a tangible medium. You also are conflating performance issues into the mix. You are also ignoring the fair use defense. Now if your example was that someone doodled and you decided to copy that frivolouos doodle, well , we both know that you have likely commmitted copyright infringement.

    Nonetheless, I think I understand your point and the summation of that point: “This is the height of frivolity

    You are a bit off here too.

    One man’s frivolity is another’s fortune. Just look at the highest paid performers of the day. Outside of the business upper echelon, you have sports figures. Talk about frivolity. Yet compare what they make with what school teachers make.

    Frivolity matters.

    Immensely.

    Your sense of culture notwithstanding, the actual reality of the matter is that culture is defined by what we are willing to spend money on. Crass? Yes. But no less real for it being so.

    Bottom line is still the bottom line. The “important stuff” is still the stuff we deem important by our actual actions.

    It is not the treating of them as if they are substantial that makes them substantial. It is the fact that we treat them as we do – in actual real world use – that makes them substantial, no matter how “insubtantial” any one “cultured” person would have it otherwise.

    That’s just reality.

  32. David,

    The crime of copyright infringement is not new, and thus is not a ex-post facto law.

    The subject matter of what the crime can be perpetrated against has changed. From this point forward, you can be charged and prosecuted. You cannot be charged and prosecuted for the free use of something when it was still free.

    There is no ex-post facto concern here.

  33. (typo understood)

    Also for your consideration, the parallel in “term” – and the result of still achieving limited term – between copyright and patent;

    Copyright may be life of person plus 70 years. How long is that? How long does that person live? Unknown and indeterminate. Yet, copyright is still clearly of limited duration.

    Patent after Trade Secret. How long kept a trade secret? Unknown and indeterminate. Yet, patent after Trade Secret is still clearly of limited duration.

    The Golan case removes the public-to-private concern. A true look at the nature of the timing in a Trade Secret removes the unlimited duration concern.

    What other concerns, then, (provided that Congress allows by law) stops a Trade Secret from being a viable patent eligible material, no matter the duration of the Trade Secret?

    What’s new to you is still something worthwhile to promote. The Court in Golan has stripped out the being-in-the-public concern that was so prominent in Pennock.

  34. Ok, now I see that you agree that selling a true copy is not an infringement.

    You still would contend that selling a recorded copy is, but why?

    What if one has the sole copy of a lost work, but one’s copy was made by recording it off the air. Your copy is quite valuable. What if someone steals it? Is the value of the theft the cost of the DVD, or does it include the value of the work? If you sue the theif, what can you recover?

  35. There was no fixed period of exclusivity even know there might be a fixed period once the patent was granted

    Agreed.

    But that thought necessitates a distinction between the time period of Trade Secret and the time period affected by the patent process, which was my position and one you resisted.

    Pennock mixed the two time periods under the thought that the overall exclusive time period included the potentially unlimited Trade Secret time period that was enjoyed prior to any initiation of attempt to gain patent rights.

    I have previously posted that the time periods must be kept separate because at least no matter how long something is a Trade Secret, once the patent process is joined, the patent right (based on the Constitutional mandate) is then limited. In essence, it matters not whether something was previously Trade Secret or not.

    Further, the argument basically went was that if you don’t join the patent game quickly, you have to choose between taking your chances with Trade Secret or obtaining the exclusivity benefits of patenting – but not both.

    The current Supreme Court case says something different than the rationale given for what it says. The rationale indeed is based on extending term, but what the case says is that public domain items can be privatized – if that is what the rules set up by Congress allow. You cannot stop at the supporting dicta provided (the ability to reset term) – you must realize what the Court has actually done.

    To contrast the difference, in Pennock, “We are clearly of opinion that if an inventor makes his discovery public, looks on and permits others freely to use it, without objection or assertion of claim to the invention, of which the public might take notice; he abandons the inchoate right to the exclusive use of the invention, to which a patent would have entitled him, had it been applied for before such use.

    Clearly, there is an element of once in the public domain, the ability to gain privately is lost.

    This cannot match up with Golan, which allows for taking something that the public has taken notice of, has used – for free – but is subsequently taken out of the public domain, based in part on the rationale that merely being in the public domain, being something that the public has taken notice of, is expressly not a Constitutional restraint.

    Our previous disagreements on Pennock have hinged on your view of what was a Constitutional driver in that case and what I claimed to be under the power of Congress.

    Our past discussion on Pennock pivoted around the power of Congresss to set those very rules – a position you would not accept.

    Likewise, Pennock was also a case in which your views do not align with the present Golan case on the matter of inchoate rights and the power of Congress to determine how the patent right actually matures into an enforceable and viable right (and thus irking Um, no to a very high degree when you ignored his “race” analogy and did not finish your discussion with him on the nature of the innchoate right).

    If you see nothing at variance, it can only be because you are not looking, or because you have forgotten the stance you have previously taken on the matter. Your forgetting would be a minor point. Not seeing the obvious conflict would be a greater concern.

  36. AI, where I am going is this: once you broadcast your website into the public domain, you have lost your chance to charge for access. While you may have have copyright rights to the content of your website, you can lose them by waiver and abandonment. I would say that once you have intentionally broadcast your work into the public domain, you have waived your right to a fee for access.

  37. When we created the Internet, it was called ARPANET (among other things) and I don’t recall Al Gore having a clue about it, much less making it happen.

  38. Never confuse real property with that imaginary thing we call “intellectual property.” Intellectual property (with the distinct exception of trademark) is purely a creation of arbitrary statute. There is no “inherent right” to it.

    As a matter of natural right, if I hear somebody whistle a tune, then I can learn it and whistle it, too, as I stroll along.
    But, the basic principle of copyright statutes is the belief that I can be rightfully constrained, essentially forever, from whistling that tune because somebody else dreamed it up.

    This is the height of frivolity.

    The rest of the creators, the ones who make REAL stuff, stuff that is really useful, get paid only once for their products. Why should frivilous “artists” be treated differently? In anything but a Hollywood saturated culture, the answer would be obvious.

    Petty songs, poems, videos, and movies contribute very little to our economy, and, arguably, very little of benefit to our culture. Economically, they hardly appear on the charts at all…and rightfully so. Whatever they are, they are all replaceable. If we did not have them, we would not miss them. Others would come along.

    Bottom line, we need to pay attention to important stuff, and let the Tinsel-Town crowd play, fight, cry, pout, and wet their diapers in the kiddie room without distracting adults. And we need to stop treating them as if they are substantial.

    They’re not.

  39. Copyleft, I didn't see your post about a single copy. I'll look and get back to you.

    Regarding a single copy sold by the copyright owner to a third-party, and which is not used in violation of the specific sections of the copyright act, doesn't the concept of exhaustion apply?

    By the way, in taking some CLE yesterday, I learned that Supreme Court had recently upheld a sentence as not being cruel and unusual in a case where a criminal defendant was sentenced to a life term without the possibility of parole for stealing $149 worth of videotapes.

    Obviously, Hollywood wanted to send a message.

  40. Anon, there can be more than one inventor of the same subject matter, and it might be that Congress can constitutionally grant a patent to the second inventor. The possibility of two inventors was discussed in Pennock v. Dialogue.  But even if one can grant a patent to a second inventor over a first who was applying for patent as well, that says nothing about what happens when an inventor keeps his invention secret and delays filing for a patent .

    In the current Supreme Court case, and in prior cases, the Supreme Court has held that Congress can extend the term of copyrights and patents for a further fixed period.  The total sum of time remains fixed. The rationale in Pennock was based upon the indefinite period of time of that an invention may be kept as an trade secret. There was no fixed period of exclusivity even know there might be a fixed period once the patent was granted.  I see nothing in the current case at variance with Pennock.

  41. An interesting caveat comes from the Court’s 1996 Graham decision. That opinion includes the line that “Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available.” In distinguishing that line, the Court wrote that the passage does not speak “to the constitutional limits on Congress’ copyright and patent authority” but instead it addresses “an invention’s very eligibility for patent protection.” (quoting Eldred). The seeming distinction here is that Congress has more latitude in determining patent (and copyright) term or duration and less latitude in determining subject matter eligibility.

    The distinction doesn’t work.

    Particularly, the “free access to materials already available” must artifically, and in quite a contortion, re-define “materials already available” (and existent knowledge)to be of a particular kind of material: the non-eligible subject matter kind.

    This butchers the more straight forward and logical understanding that the material is eligible material (or the fruit of that material, the knowledge) that has transitioned from a state of not-free access to a state of free access (private to public domain).

    Of course, taking the direct and most logical understanding of the phrase would render the Golan decision hopelessly illogical.

  42. Ned,

    Have I answered your question with the missing point from my original post at 8:26 PM (allowing for secondary market and distinguishing selling of a single copy versus selling of additional copies made)?

    I do not think your added point of whether the CD was previously stolen or rightfully owned impinges on the status of a copyright violation.

  43. Any modern piece of electronics would be infringing so many patents from the past that it just couldn’t be made and sold at a profit.

    What a big change that would be.

  44. Eh, I’m pro-patent and all, but society just doesn’t work if you make IP rights that strong. Any modern piece of electronics would be infringing so many patents from the past that it just couldn’t be made and sold at a profit.

  45. and granting a patent or copyright to someone who is not an inventor or an author.

    Ned, not much time (in other words, I am not recrafting this to be short and sweet) – but this is decidely not what I was alluding to.

    Do you accept the notion that there can indeed be more than one true inventor?

    With the risk of inviting “Um, no” back (and trying to leave aside the venom), think of his analogy of the track meet and more than one inventor being invited to partake in the race. The patent is awarded to the winner of the race – not to the first person to show up at the race.

    The race can feature more than one runner.

    We have this now with near simultaneous invention. We have this now with every legitimate rejection of every legitimate application (by legitimate application, I mean an application sworn to by the inventor that that inventor truly believes that he is the original inventor). The second (or third, or fourth, etc) may not be the original first inventor, but if that later inventor is first across the finish line, but given, for arguments sake, that he did invent on his own, he is a true inventor and it is he that earns the patent – not the others.

    Congress clearly – now more than ever – has the authority to set the rules of the race.

    This stems back to the whole “inchoate” discussion. An inchoate “right,” without more, is stillborn and quite meaningless – unless Congress decides to change the rules.

    I have not yet finished Golan, but it appears that the Supreme Court has fully abdicated AUTHORITY to whatever the rules Congress comes up with are the rules for the application of the patent (copyright) clause.

    It is most emphatic (so far) in Golan that the mere fact of an item being in the public domain is quite meaningless. Logically, this directly destroys the notion of inadvertent “dedicated to the public.” (by a true inventor), even years (decades even) after the fact (and if Congress so allows through its decision on the rules). This quite destroys the urgency factor as Ginsburg points out – there is more than one way to “promote the progress”. In fact, Ginsburg’s words lay the foundation (if Congress so decides) for the removal of the novelty requirement altogether: “Specifically, they claim that because [Section] 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 “[the arts],” i.e., knowledge and learning.

    and later

    this Court’s decisions, in fact, suggest that inducing the dissemination of existing works is an appropriate means to promote [the arts]

    Clearly, if Congress so deigns, long held Trade Secrets are viable candidates for patent protection under the “it’s new to you” ideal because patenting even such existing works would be an appropriate means to promote [the arts] that otherwise would not be promoted.

  46. LOLZ MM.

    While you are undoubtedly the master of serious wankerage, your typical non-substantive post means nothing.

    Now if you actually explained why the aggregate loss of true sales cannot be substantial, you might earn a shred of respect.

    Pardon me as I do not hold my breadth for that.

  47. . I have denied it countless times

    LOLZ – I cannot hear your lying denials because your posts drown out what you are denying.

  48. Is this one of those photos where you see one thing and then you squint your eyes and see something else? At first I noticed a dog, but then I noticed a lobster…

  49. Academics should never cite to Wikipedia, and this includes their blogs. Wikipedia has very little credibility. Very often the citations on wikipedia don’t say what they are cited for, and the wikipedia articles on complex topics such as the law are often just flat out bad information.

  50. Ned have you added Google to your list of clients that you shill for on this blog? They are against SOPA right?

  51. What if no one profits? I am sure that the losses are quite hefty concerning illegal file sharing where individuals are individually not profitting, but the aggregate loss of true sales is substantial.

    Serious wankerage. 11 out of 10. Keep it up and you’ll go blind.

  52. Lefty, I don't have time to fully address your thoughtful post, but just let me ask you this.

    If you steal a copyrighted CD from a store and then sell it to a third party, have you committed a copyright violation?

  53. It sure was hard to wrap my head around it. I think it had something to do with BLOOD! Gloria and Ray and Ramona I can’t wait for the Battle! I can’t believe you were able to do this. I can’t believe no one would tell me! But now that I know, I can’t wait!

  54. This decision may undermine much of the foundation of Supreme Court Constitutional patentable subject matter limitations

    Indeed. If the Constitution is a mere “guideline” and the parameters are fully up to Congress, then all of the Supreme Judicial Exceptions (which have no basis in what Congress has decided) are bereft of power.

    Anything goes (as long as Congress decides that).

  55. I realize that I should have distinguished a true secondary market (selling the one true copy is not at issue and is not what I meant)…

    But even that gets quite murky when one considers the different avenues of exchange (licenses and all that).

  56. The remedy provided by Congress is against the people, not against the pirate.

    You might want to review the Grokster case.

  57. you make the public infringers who are only doing what they think they have a right to do.

    Don’t blame me, that’s what the law is (try selling those copies of a movie you videotaped to see how fast you are squashed).

    Merely broadcasting (even into the public forum) does not destroy the copyright (pretending otherwise is simply rewriting the law). Sure, the person with the scratchy copy can play his one copy as often as he wants for his personal enjoyment, but he does not have any rights to copy that scratchy copy. Now giving away the one copy does not involve copying, so there is no problem there.

    Your desire to predicate the offense based on “severity” ignores the basic underpinning of what the right is. In a make-believe world, I guess that would be possible (but then, in that world anything would be possible). The only reason why prosecution against individuals is not more prevalent is because the economics of such just don’t pan out (but that is not a function of the law).

    As for the drug use issue, well, I think there are plenty of people who are still prosecuted with the enforcement of the laws, so I am not sure your point is all that convincing.

    We should limit the remedies to those who substantially profit from their piracy.

    What if no one profits? I am sure that the losses are quite hefty concerning illegal file sharing where individuals are individually not profitting, but the aggregate loss of true sales is substantial. Disbursing the theft amongst thieves does not disburse the harm to the victim. If I have a million dollars and you steal that million dollars and give one dollar to a million people, are you saying that you should not be prosecuted? You made no profit. The average profit by any one person is de minimus. Yet, I am still greatly harmed.

    Or do you think my harm is “absurd”? Frankly, I find the argument that theft by copy still leaves the original intact to be absurd (and your line of thought seems to shadow that). The right violated is not a possessory right (its called copyright rather than possessionright for a reason).

    As far as Big Brother and the instant remedy – that sounds more like instant justice, don’t you think? With proper due process safeguards, is there really a problem with expediency? Granted, the aspect of error and violation of due process is a legal concern, but let’s not conflate that with technology itself. That would be like throwing wooden shoes…

  58. Umm ..what does that have to do with the question? Do you have any idea where you are even going with this?

  59. NED: you lie like a rug

    AI:Same old tactic of accuse others of what you do. Boring. Besides what lie have I ever told?

  60. AI, you lie like a rug.  The basic problem you have is that you have personal agenda that involves your own profit.  You declare war on anyone who undermines your profit, regardless that they are only expressing their opinion in a public forum.  

  61. Lefty, regarding the taped copy: You say that you do not have the right to sell it?  Why not?  Does not the owner of a copy of a book have the right to sell it?  Even if the copy is made from a public domain broadcast, should the copyright owner prevent the possessor of the copy from letting others read, view, listen to or simply from giving away the copy?  

    If you say no, you make the public infringers who are only doing what they think they have a right to do.

    Now, if video-taper were to get into competition with the copyright holder cause him substantial harm, I think a cause of action would lie.  But not otherwise.  The enforcement against individuals is wrongheaded in the extreme.

    The same thinking had developed around recreational drug use, not so?  We recognize the utter futility of enforcing drug laws against the individual.   

    IMO, we cannot and should not enforce copyright laws against individuals.  We should limit the remedies to those who substantially profit from their piracy.

    I thank Sci-Fi for exploring the absurdities.  In a recent film, corporations were allowed to repro artificial organs if the owner was late on his payments.  Imagine if corporations leased artificial organs and could raise the rent at will and if you didn't pay could shut your organ down remotely.  Ridiculous?  Well not so fast.  It wasn't so long ago that Big Software demanded the legal right to do just that if you were late on your payments: turn the software off remotely.

    Imagine a future where landlords could evict you at the push of a button?  The technology, in a way, already exists.

    We really need to resist the encroachment of Big Brother in all his forms.

     

  62. If anyone should lose their posting privileges here it should be you for your flagrant dishonesty. Which has been pointed out by numerous commenters long before I noticed it. But then again you know how to take a beaten and keep on cheaten. So I don’t think you could ever really be stopped.

  63. Ned: “OK, but can you charge anyone who views your website a fee if you provide no login or do not prevent access by some reasonable means?”

    AI: Yes.

    The rest of your your point is moot

  64. playback apparatus to require some evidence of authenticity to play content.

    Problem One: fair use (you cannot constrain access for legitimate legal purposes, even if you have a copyright on the material).

    Anyone with a tape recorder, invented by the Germans during WWII, could record music off the air, and then listen to it as often as he or she pleased.

    Problem Two: You may be able to tape record anything, but you do not have the right to sell what you have taped (even the old scratchy stuff that you infer is in the public domain).

  65. Now that I know the Story. I deserve to go to court!
    The only thing that really makes me livid. Is why would the Government want to do this to me again? Why would someone mention the Doogie? Was it because they knew that things were going to be different? but how different? So I then Fire the only 4 that were there. And B being the only one able to destroy my life… And now I want to know why can’t I have my Court Rights? And if that is already decided, then why are you still letting all these lies destroy what’s left of me and my Son? Is the Fender that important? You are not going to get my Doogie! I did all the things expected to be free legally. And I expect fair play. And I also expect Compensation for what has been done if what has been done to me is being swept away. And if there are any other Properties I am entitled too the law says they belong to “ME.” Not those who want what’s mine! I plan on putting people to work. I plan on my own Junque/Antique Shop! I plan on getting the h@ll out of this area. Those are my GOALS. And you thought I had none. It was all about the Government BOX that became a family SAND BOX! like I said before. I invite who I want in to my Sandbox. Ans that is my American Right! And so was my Patent(s) before, and so is this one. I don’t think I will bother with anymore. Too bad for America

  66. OK, but can you charge anyone who views your website a fee if you provide no login or do not prevent access by some reasonable means?  If someone pirates your website, sue them.  But can you sue people for viewing the pirate website?

    No.  

    The remedy provided by Congress is against the people, not against the pirate.  What we are talking about is the public right to use the internet, the right to read, the right to see, liberties protected under the constitution to Americans albeit not protected to citizens of despotic regimes such as Communist China.   For example, China demands that internet providers pull the plug on sites that publish democratic thought.  We need to fight this type of censorship in all its forms.

     

  67. I would just like to note that the other day I noted that Obama declaring war on hollywood was better than having the interwebs declare war on him.

    link to twitter.com

    It seems that we may be at the cusp of something rather large. One can only hope.

  68. Better yet just remember…

    There is a PRICE for Intellectual Property.

    If you don’t want to pay it.

    Don’t play it.

  69. Ned, web sites are private property,

    Anyone that copies/reproduces, displays, distributes, telecommunicates or otherwise uses copyrighted work on their private property/web site should be require to pay the price of the owner of the copyrighted work. PERIOD.

    Don’t play if you don’t want to pay!

  70. AI, I think, really, that once something is firmly in the public domain that the damage is done and that there can be be no effective remedy against the public and that the effort to pull the content back is not worth the impingement on freedom.  Think music and video.  Anyone with a tape recorder, invented by the Germans during WWII, could record music off the air, and then listen to it as often as he or she pleased.  Sony tried to stop the spread of tape recorders in the famous BetaMax case.  The Supreme Court would have none of it.  Once the people have the admittedly degraded quality recording, they have it.  End of story.  It is gone and into the public domain.

    I was once involved in a case where in effect a theater owner was trying to charge people who were standing were they had a right to be and who were watching the performance displayed in a manner that it was plainly visible to the public.  On what theory?  What a joke!!!!

    Can you go to a public forum, read your copyrighted work to them, and then sue them if they do not pay?  Are you kidding me?

    But that is what Congress is trying to do.  They are trying to stop people from viewing copyrighted information that is being broadcast into the public domain, albeit, not by the copyright owners, but by others who "taped" the broadcast by the content creator.  The remedy is to effectively shut done the public's right to "see."  

    It might be better for Hollywood  to work with the makers of high quality video and audio playback apparatus to require some evidence of authenticity to play content.  This "private" remedy would be far more effective trying to prevent people who are standing where they have a right to be from viewing content broadcast into the public domain.

  71. Nice red herring fallacy. Or in your case we should simply call it a “Ned Herring” since you use it so consistently. I have noticed that you and the rest of the anti crowd are reacting on this SOPA issue the same way you do when I box your years on 101 patent issues.

  72. INANE: Tell that to anyone whose website accepts and displays comments from the public.

    AI: That’s what DMCA is for.

    INANE: For that matter, see that Picasso Dennis included in this very post? How long ago do you reckon the artist died?

    AI:If the current law says the work is in the public domain, Dennis has nothing to worry about. And the points you made are as usual, a non issue.

  73. As far as “due process” surely if someone was falsely accused they could and would have their day in court. So that is a non issue.

    In AI’s expert legal opinion, due process is a non-issue, so long as the accused (or his estate) gets his day in court.

    However the surest way to avoid even being accused is to NEVER post or publish anything on your web site you do not own or did not create.

    Tell that to anyone whose website accepts and displays comments from the public.

    For that matter, see that Picasso Dennis included in this very post? How long ago do you reckon the artist died?

  74. Hey, AI, why limit one’s endeavors to inventing anything? Why not pirate someone else’s preferably trade secret invention that has proven itself or has great potential and file on it? The law no longer prevents such a pirate from receiving a patent, even if he admits the piracy after receiving the patent.

  75. 6: He did not say that they were. He said an expansion of ip lawls.

    AI: The expansion of IP laws can be a very good thing.

  76. Robert K S: “These bills are not an expansion of intellectual property rights, but license or obligate enforcement measures that would deny due process.”

    Robert, as an Actual Inventor, I consider any bill that would enable me to successfully enforce and collect licensing fees for my legally owned intellectual property, to indeed be in support of, if not an expansion of, my IP rights.

    As far as “due process” surely if someone was falsely accused they could and would have their day in court. So that is a non issue.

    However the surest way to avoid even being accused is to NEVER post or publish anything on your web site you do not own or did not create.

  77. “AI, would you favor a law that would shut down the NY Times, CBS or any such organization on the simple accusation that they published plagiarized works?”

    Show me such law, or at least a bill in Congress and we can have a discussion. Until then I advise you to get off the Spooky Train.

  78. The point is you have not defined or cited any definition, legal or otherwise of what “Big Copyright” is.

    The point is you can’t cite or even quote one passage of any actual bill in congress that says what you claim it says.

    Thus the the only thing that needs to be stopped is your unsubstantiated fear mongering and baseless conjecture.

    As far as I can determine, owners of Intellectual Property need to rally around SOPA and work to see the bill passed and the law enacted.

    We must work to protect our Constitutional rights to keep and defend our Intellectual Property from interlopers and would be thieves.

    We must protect our livelihoods and our ability to create jobs from the Anti IP, do nothing people in the world. The very types that create no jobs and no value and then whine when they have to pay those that do.

    Get off your duffs.

    Take a shower.

    Take responsibility for your life.

    Then use your brain to create and invent something.

    Get yourself a copyright, trademark and/or patent join the percent of the world that makes it a better place for all.

  79. I looked into the takings clause and the history thereof a bit yesterday. Indeed it does seem as if they’ve focused like a laser on “real property” rather than simply “property” as the clause itself refers to.

    The issue of course is that the amendment itself calls for takings of property and some people (i presume courts) have interpreted that as “real property”. Perhaps though this has been due to this being the only area where people have traditionally found their property taken.

    But you are right, in several cases there was a ruling against people where there was a taking of real property due to law that said they couldn’t do anything with it. I don’t know how all this area of lawl has evolved and what it stands at today. We need a better constitution to tell the truth, it is beginning to show its age. Not to say that it hasn’t served well in the past and won’t in the future, but that thing is going to need to be changed to keep up with the times.

  80. Here’s perhaps a non sequitur: IMO copyright protection is too long, esp if one compares it to patents.

  81. AI, this is ridiculous. I have denied it countless times and you know it. Your post is one more example of your flagrant misuse of your privilege to post here.

  82. AI, would you favor a law that would shut down the NY Times, CBS or any such organization on the simple accusation that they published plagiarized works?

    What if they were found guilty in court of publishing one plagiarized article? Could a court constitutionally shut down their whole operation ad infinitum? Wouldn’t the remedy be far beyond reasonable?

    Any such system could quickly lead to tyranny, as unpopular views could be suppressed by trumped up charges of plagiarism or the like. If you protest that this would be unlikely, I invite you to study up on the French revolution and the reign of terror.

  83. Good grief. If there is not a “taking” of real property due to law (regulation) that says you can’t do anything with the land, how on earth would a heretofor unrecognized ‘general public interest’ property right be recognized? There is not even standing to sue.

  84. anon, assuming you were divorced on petition from your former spouse. Do you think Congress or a State would have the power to retroactively extend your former marriage to the present, again on the petition of your former spouse, so that you could no longer legally marry anyone else, etc.?

    Talk about conflicts with constitutional rights, this one would take the cake, IMHO.

  85. Private patent term extension was often granted in times past. I think there may even be a scotus case on the patent lapse and then being revived scenario as well. The justification was often that the patent owner needed more time to commercialize (back in the old days the link between property rights and incentives to commercialize were universally recognized). The statutes themselves were very short – listing a patent No, usually a half dozen or so at a time – and declaring the new expiration date or amount of extension.

  86. anon, I think the Supremes made a clear distinction between extending the patent or copyright of an inventor or an author after the invention or work had fallen into the public domain and granting a patent or copyright to someone who is not an inventor or an author.

    I think this would preclude granting a patent to a second inventor who made his invention after the subject matter of the invention had fallen into the public domain. Left open, of course, is whether Congress can grant a patent to a second inventor who made his invention prior to the subject matter falling into the public domain, when a first inventor also seeks a patent. From the dawn of the US patent system, Congress and the courts both believed that only the first inventor had the right to patent.

    I don’t fully understand your point about Metallizing; could you please explain?

  87. I think there’s too much is being made of §514 being in conflict with the Copyright Clause. From my reading of Ginsburg’s majority opinion, §514 is essentially a remedial provision to restore what’s left of the copyright term for a foreign work that fell into the public domain because of, for example, failure to observe U.S. notice formalities (such formalities are frowned upon by Berne). See footnote 35 of Ginsburg’s opinion which says it all: Persistently deploring “‘restored copyright’ protection [because it] removes material from the public domain,” post, at 14, the dissent does not pause to consider when and why the material came to be lodged in that domain. Most of the works affected by §514 got there after a termof zero or a term cut short by failure to observe U. S. formalities. In other words, what Ginsburg’s opinion says is that §514 restores (does not extend) the copyright term.

  88. 6: “did you mean “legally”? Because if you meant “legally” we can just say : or unless the government decides to.”

    AI: Look 6, the point is simply that owners of Intellectual Property should have legal rights as strong as the rights of owners of real estate property. SOPA appears to be moving us in this direction.

  89. You can find the most recent versions of the bills yourself, they’re not lawls yet, which is the point, we want to stop them from becoming so.

  90. Second, my point is hardly a non-sequitor

    Did it answer Jeff’s question, sockie? Nope. In what manner do “basic tools … having no … creative content” have any relevance to a discussion about the patentability of novel mental processes? Please explain, sockie. Also, please tell us what the definition of “non-sequitur” is on your planet, sockie.

    Man, this blog has the dumbest trxlls.

  91. Follow up question: Does Congress have the power to extend say a single patent (i.e. the Lipitor patent?) or does it have to be a class of patents i.e. all patents from 1999-2001 or in a specific area? Does Congress have the power to take a patent that has expired, say a different drug that was previously patented and resurrect it and give the rights back to the original assignee?

  92. I know the takings question has been addressed by law review articles… but was this in the cert petition or in the merit briefs?

  93. Wow – that is truly sad Malcolm.

    First, the only one calling anyone a name is clearly you. I responded to Jeff by Jeff’s name with zero ad hominem, sarcasm, or snideness.

    Second, my point is hardly a non-sequitor (do you even know what that means?).

    Third, your adoration and following of my posts (not related to you at all) is a little spooky. Please stop trolling me.

  94. Jeff: Why would Congress not have the power to grant patents for original mental processes or original abstract ideas?

    They do have the power to do that, if they wish. They’ve never expressed any interest in doing that, to my knowledge.

    sockie: couldn’t a distinction be made between basic tools which belong to no one (in essence, having no individual creative content) and copyright (or patent) items with creative content

    Yet another non-sequitur from sockie. Everytime the issue of patenting mental processes is raised, sockie starts reflexively kicking up dust and calling people names. Sad.

  95. Does it Jeff? Without commenting too much, couldn’t a distinction be made between basic tools which belong to no one (in essence, having no individual creative content) and copyright (or patent) items with creative content that are being moved from the commons to protective state?

    Off the top of my head, there still seems to be a colorable difference.

  96. +1

    Malcolm is the ultimate projecting troll. He has consistently avoided any true dialouge on substantive issues outside of his typically fatally flawed strawmen, at the same time clamoring for instant answers – and never giving answers to those who post hard questions to him.

  97. IANAE,

    We may be in agreement.

    However, I would decline to so limit the case to only reviving of abandoned copyrights for the remainder of their original term, as the dicta seems to open wide the door for any type of recapture from the public domain to the “private” based on whatever scheme Congress decides. That’s why I noted this ‘concern’ to Ned, as I know that he has strong feelings in this area (and I have disagreed with him previously on the scope of what Congress can do).

    As to a substantive discussion on the case itself, I am afraid that it will have to wait until the weekend, as I prefer to read and absorb the decision fully. Thank you for your patience.

  98. This decision may undermine much of the foundation of Supreme Court Constitutional patentable subject matter limitations (“basic tools” etc.). Why would Congress not have the power to grant patents for original mental processes or original abstract ideas?

  99. 6: “You don’t seem to get it bro, even if you do not post such things they can still allege that you did and shut your sht right down. That’s the problem noted above with sopa.”

    Now this is a bit much. Sounds like more fear mongering to me. I mean if such were the case all it would take is me humiliating you, MM, and Ned in a debate as usual and then all you would have to do is lie about Patently O using your copyright and have it shut down. If the supporters of SOPA did such a thing what would stop anyone from doing it right back to them?

    Such a situation would be thermo nuclear war on the internet. Assured mutual destruction at it’s worse.

    And I can’t believe anyone would support such a law. Fortunately that is ot what SOPA is at all.

  100. 6: “Nah bro, you need to read the new lawls, they’re not “equal opportunity” lawls. Your niece will not have the same powers as big copyright will.”

    If there is such a law then you need to cite it right here and right now because as far as I know there is no such thing as “big copyright .”

    I really think you people are making stuff up now.

    Trying to stir up fears so you can stop and otherwise useful and important law for protecting intellectual property rights,

  101. Ned,

    You too admit, by your actions and views, that you are a shameless shill.

    The point is not about who has or who does not have financial interests – it is how those financial interests color and pervert the law and the legal logic presented in arguments. In that arena, you are the tops.

  102. Your relentless hypocricy

    LOLZ – Malcolm, the only one here with relentless hypocrisy is you. What was that you posted the other day – mixture of bitterness…? Haven’t you been at those with thousands of posts over more than half a decade, and still getting things wrong, and still projecting your vices on others.

    How exactly does your tired [old step]+[newthought] fit here? Answer: it doesn’t.

    Thank you and good night.

  103. “o unless it says otherwise, whatever the big Comps can do under SOPA so can the little guys and individuals.”

    Nah bro, you need to read the new lawls, they’re not “equal opportunity” lawls. Your niece will not have the same powers as big copyright will.

  104. “AI: No, that could NEVER happen to my website because I do not post OPC, (Others People’s Copyrights) on my site.”

    You don’t seem to get it bro, even if you do not post such things they can still allege that you did and shut your sht right down. That’s the problem noted above with sopa.

    The point, AI, is that SOPA is so badly written that these absurd things can and almost certainly will happen.

  105. Ned: “AI, I am pro patent regardless of your thinking.”

    AI: Maybe, as long as it’s for a patent category you are paid to promote or protect. But let it be a patent be for a so called business method, software process, or financial product or service and you swoop down on it like a hawk on a baby rabbit.

  106. 6: “Perhaps you even have a website. Know this, even a mistake by a company you know nothing about and has made a mistake on THEIR END could shut your site right down.”

    AI: No, that could NEVER happen to my website because I do not post OPC, (Others People’s Copyrights) on my site.

    6: In your analogy it is like me standing IN MY FRONT LAWN and getting shot for ALLEGEDLY trespassing on some land 1000 miles away by “accident”.

    AI: Your example is non analogous and quite ridiculous. If you don’t go on another persons lawn you can’t get shot for being on their lawn.

    For as the web is concerned, there can be no mistake if you don’t post another persons intellectual property.

    Period.

    What you are overlooking is the fact that copyright laws are equal opportunity laws. The same rights apply to my nieces youtube video as they do for a major corps movie.

    So unless it says otherwise, whatever the big Comps can do under SOPA so can the little guys and individuals.

    My 10 year old niece can stop FOX from using her video just like FOX can stop her from using its movie.

    It really sounds like this SOPA is going to keep everyone honest and respectful of Intellectual Property.

    And thats a good thing!

  107. 6: it is like me standing IN MY FRONT LAWN and getting shot for ALLEGEDLY trespassing on some land 1000 miles away by “accident”.

    The National Alliance of Lawn Preservationists supports this comment.

  108. “No one EVER get’s to use it for free, without my permission.”

    Unless they decide to. Or unless the government decides to.

    Or, oh, I’m sorry, did you mean “legally”? Because if you meant “legally” we can just say : or unless the government decides to.

  109. “But it seems pretty easy to avoid. ”

    AI you seem to take for granted that the person you are talking to is referring to an “innocent mistake” on HIS part as opposed to the content industry’s part. Be clear, an innocent mistake on EITHER SIDE could result in his site going down. And that is a huge problem because the industry already makes mistakes of this kind (accusing the wrong site, accusing sites that really never did anything wrong etc etc) and take the wrong actions under the DMCA.

    In short, they already have shown they can’t use the lawls they have properly, why then shall we give them more draconian lawls to not use properly?

    Perhaps you even have a website. Know this, even a mistake by a company you know nothing about and has made a mistake on THEIR END could shut your site right down.

    In your analogy it is like me standing IN MY FRONT LAWN and getting shot for ALLEGEDLY trespassing on some land 1000 miles away by “accident”.

  110. “In return, they have declared war on Obama.”

    It is better than potentially shutting down your interwebs and/or having the interwebs declare war on you.

  111. “The pdf of this case on the Supreme Court cite seems to be corrupted.”

    That’s the corruption of the court seeping through, all pdfs of this case are ruined :(

  112. Brosensky D just didn’t finish lambasting SOPA/PIPA he only said some of the bad things SOPA/PIPA would do. That’s not really a “mischaracterization”, it just is him not being thorough in listing out all the bad stuff.

    “These bills are not an expansion of intellectual property rights”

    He did not say that they were. He said an expansion of ip lawls.

  113. Malcolm, speaking of minorities, I was just taking some CLE about eliminating bias, and found out that one can apply to be a judge in California. May I suggest to any who read this and who are minorities that you take advantage of this unique opportunity and apply if you are otherwise qualified. (All you really need is 10years practice as a California lawyer.)

    See, e.g., link to lasuperiorcourt.org

  114. Malcolm, I agree with you that the “printing press” induced business model of times past is “gone with the wind.” Proprietary content providers need to develop new methods of obtaining revenue that do not unduly restrict the essential liberty given us by a free internet.

    Any member of Congress supporting the Hollywood elite’s attempt to reduce internet freedom have to be identified and opposed regardless of party.

    I note that Obama opposes the Hollywood elites in this. In return, they have declared war on Obama.

  115. don’t post something on your web site that you did not create, or do not own.

    And after he posts this great advice, Actual Inventard returns to his front lawn where he yells “get out of my sky!!!” at the passenger jets flying over his house.

  116. AI, I am pro patent regardless of your thinking. Just for example, I think the patent owner should have a right to an injunction that should only be defeated by a showing of irreparable harm TO THE PUBLIC. This position is hardly anti-patent.

  117. “The seeming distinction here is that Congress has more latitude in determining patent (and copyright) term or duration and less latitude in determining subject matter eligibility.”

    If Dennis characterization is accurate, this can’t bode well for the anti patent agenda of MM and Ned Heller, particularly when it comes to Nedo’s belief that Congress, in the AIA, overruled Bilski’s upholding of business methods as statutory subject matter.

  118. “This limits my ability to defend myself and/or comply with a takedown notice; under SOPA I’d simply lose my website altogether for something that could be an innocent mistake.”

    IDK Rob if that is the actual case. But it seems pretty easy to avoid.

    Just don’t post something on your web site that you did not create, or do not own.

    Why is that such a hard thing to do?

    It’s like trespassing on someones land and saying I hope I don’t want to get shot.

    Just don’t go on the land in the first place!

  119. always kept to ensure that “threats” to the white

    Yep – tinfoil hat time.

    Will someone please escort Malcolm back tohis rubber room.

  120. Well in the case of “what’s wrong with SOPA?” i’d say number 1 on my list of grievances is that being accused is enough to have action taken against you. We already have DMCA which provides for legal action against piracy, but the entertainment industry would like to have content removed without taking people to court and getting a judge’s approval or communicating with them at all. This limits my ability to defend myself and/or comply with a takedown notice; under SOPA I’d simply lose my website altogether for something that could be an innocent mistake. I don’t support piracy, but I also don’t believe one is guilty upon being accused.

  121. why is it disgusting that people have to pay the creators/owners of intellectual property?

    Nobody could have predicted that Actual Inventor would beat strawmen to death in threads about copyright laws, too.

  122. My understanding is that they retroactively reinstated the terms that would have been prospectively extended had they been in force at the time.

    Oh. Well, in that case…

  123. I’m hopeful that this Sup. Ct. decision [irrespective of its own debatable merits] will at least finally end nonsensical arguments in comments on this blog and elsewhere that the Sup. Ct. would find patent claim elimination by reexamination to be unconstitutional.

  124. I believe they’ve been given terms that were retroactively extended,

    My understanding is that they retroactively reinstated the terms that would have been prospectively extended had they been in force at the time.

  125. Well, not quite the original terms. I believe they’ve been given terms that were retroactively extended, long after the owners “missed a few maintenance formalities.”

  126. “Washington has shown that it is in the pockets of Big Content and has no concern for free speech concerns or basic human freedoms as they have grown to evolve in the digitally connected world.

    First SOPA, now this. Amazing and disgusting.”

    What’s so wrong with SOPA?

    And why is it disgusting that people have to pay the creators/owners of intellectual property?

    It’s not like those that want it for free created it.

    The creators and owners of intellectual property should have as strong if not stronger rights and protection as the mere owners of real estate property.

    For example, if I pay my real state tax then my real estate stays in my possession for life.

    No one EVER get’s to use it for free, without my permission.

    Anyone that steals it, or uses it, without my permission commits a criminal act.

    And, the owners of real estate property didn’t actually create or invent the land!

    The owners of copyrights, trademarks, and patents do actually create and invent their property.

    So why shouldn’t they get the same if not stronger protection and rights?

  127. I’m curious about one thing. These works fell into the public domain. If they were a large work I presume that some industry may have popped up around them. A small one perhaps, but an industry even so. Is there not a “taking” under the takings clause by the government going on if the business is built on public domain works that they magically get back under copyright?

  128. I was thinking more like the case of naked taking out of the public domain by a “new” invention

    But as we all know, sockie supports the granting and enforceability of claims in the form [old step]+[newthought], which do precisely that.

  129. No, not really

    Oh, good. We’re in agreement.

    You do realize that’s pretty much what this case is about, right? They’re essentially reviving abandoned copyrights for the remainder of their original term where the owners missed a few maintenance formalities.

  130. No, not really as there there might arguably be a colorable expectation (but then again, your examples may play).

    I was thinking more like the case of naked taking out of the public domain by a “new” invention, or (more in line with Ned’s pet peeve) having something in the public forum under a “trade secret” and years later obtaining a patent for it.

  131. The Professor: The political setup of this case is somewhat interesting because the government’s pro-property position could be conceived as the conservative approach while Golan’s more liberal position is suggesting that anyone should be able to use these works without payment to the creator. At the same time, the liberal Golan’s legal argument was based upon the traditionally conservative suggestion of strong Constitutional limits on the powers of the federal government.

    Of course, it’s always been the case (and particularly so for the last 50 years), that the conservative’s “traditional” limits on Federal power always include the caveat that enough power is always kept to ensure that “threats” to the white Xtian “identity” of the country are suppressed, along with any threats to the oligarchical interests who fund the “traditional conservative” movement.

    With respect to SOPA, Duncan Black hit the bullseye today (again) when he observed:

    Years ago I posted that the internet was indeed a miracle, and only due to sheer luck does it exist in anything resembling its current form. Reed Hundt objected, saying it was due to design by smart people. He was, of course, correct. I didn’t mean luck in the sense that we found a shiny penny, I meant lucky in the sense that when smart people were inventing it and Al Gore was making sure it happened, nobody had enough “sense” to stop it. That is, the entrenched interests didn’t see it as a direct or indirect threat, and no one informed Senator Hatch that in a couple of years his granddaughter would have a porn machine on her desk.

    It could have been very very different. As it could be in the future.

    link to eschatonblog.com

  132. Nice mischaracterization of the intent and effect of SOPA/PIPA and the gist of today’s protest at the end of the article.

    These bills are not an expansion of intellectual property rights, but license or obligate enforcement measures that would deny due process.

  133. Would you be willing to hold that same thought for patents? Would you be willing to take something out of the public domain and make it so that it does not stay for free?

    You mean, like reviving an abandoned patent or application for the duration of its original term when the rights holder unintentionally or unavoidably failed to do what was required to maintain the right in force?

  134. Not every “free” things stays for free

    That, sir, is the crux of the matter (and btw, completely eviscerates your snappy post at 1:40).

    Would you be willing to hold that same thought for patents? Would you be willing to take something out of the public domain and make it so that it does not stay for free? According to you (and seemingly the US Supreme Court), this is perfectly A-OK as long as Congress says so.

    Ned – any doubt now on where Metallizing and the AIA would turn out if it made it to this same Court?

    I hear the dance music in the background…

  135. Right on! With the existence of fast communication networks, copyright restrictions on end-users are incompatible with free speech. Luckily for us, the latter is implied by the physics of computation.

  136. “Your post misses the point that the ‘something for free’ was achieved and is being rescinded.”

    Not every “free” things stays for free. Congress changed their minds, so if people have a problem with it, they can take it up with them.

  137. “Amazing and disgusting.”

    I feel that way every time I try to get something for nothing and get denied.

    I believe you, Brian Moynihan.

  138. Ruthie, Ruthie: inducing of the dissemination of existing works is a permissible means to promote science

    That’s nice, Ruth. This decision will accomplish absolutely nothing meaningful towards achieving that result and will more likely have the opposite effect.

  139. Telling,

    Your post misses the point that the “something for free” was achieved and is being rescinded.

    That’s a completely different story than a pure “I want something for nothing.”

    I have not yet read how the Supreme Court dances around the patent issue, but I have a feeling I will need to rest up to keep up with that frenetic dancing.

  140. “Amazing and disgusting.”

    I feel that way every time I try to get something for nothing and get denied. Can’t we evolve into a society in which anytime I want something it will be given to me for free. Now that is true freedom — freedom from giving anybody credit for the work they did.

  141. Good point, Dennis, on the patent issue. How can Copyright extend to public domain materials and patents not? Well, the premise has to be faulty. What this decision seems to stand for is that Congress can extend copyright term — retroactively.

  142. At this point, I think the free speech advocates for a more limited copyright regime should give up trying to influence Washington and the courts and simply find new ways to ignore the law and encourage end-runs around copyright (yes – including piracy) to effectively grow the black-market culture which copyright overreach had given rise to.

    This should be a Boston Tea Party moment – which by the way, was not ‘civil’ disobedience, but rather disobedience. Its time to start encouraging that now. Washington has shown that it is in the pockets of Big Content and has no concern for free speech concerns or basic human freedoms as they have grown to evolve in the digitally connected world.

    First SOPA, now this. Amazing and disgusting.

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