Supreme Court Says Congress May Re-Copyright Public Domain Works | Hacker News Reader

Supreme Court Says Congress May Re-Copyright Public Domain Works

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160 pointsshrikant74 comments

Justice Elena Kagan recused, said Congress’ move to re-copyright the works to comport with an international treaty was more important

I am really tired of the arguments that sacrifice sovereignty for globalist endeavors. Our laws are supposed to provide a framework of government for American people and businesses, not ensure the rights of foreign works. The rights of US citizens should be the foremost concern of a US legislator and when it comes to satisfying a treaty compromising those rights the treaty or international precedence should be thrown out the window. I feel like I am now living in bizarro world where no right is safe. I mean the fact that public domain, the resting place for IP is no longer the end of the line is about as strange an interpretation of public domain as one could come up with. They are laying the same groundwork for this international treaty argument on gun rights as well.

> ... sacrifice sovereignty for globalist endeavors.

Can anyone from the US really make this point with a straight face.

A little hypocritical to say the least.

If this was the position of the government it may be hypocritical. As individuals we have our own views.

As a US citizen I dislike our interference around the world, especially when it is without the support of the global community. I also dislike the use of international treaties as a 'work around' to our sovereign law. While I do believe in respecting the treaties we make, I dislike the practice of intentionally making treaties that force us to change our laws as a 'hack' of our government processes.

Where is the hypocrisy?

> "I dislike the practice of intentionally making treaties that force us to change our laws as a 'hack' of our government processes."

Isn't this the whole point of treaties though? What good is a treaty if member states don't have to change incompatible laws to conform with it?

What's the point of, say, signing a human rights treaty, without changing currently compatible laws to fall in line?

Sounds like these guys wouldn't sign most such treaties.

I'm happy to be a good neighbor, but policy should happen as close to the local level as possible. I don't think that is a shocking insight.

The point of the treaty is to come to an agreement between two governments. If the provisions of the treaty are not legally possible than the treaty is meaningless. For a more extreme example:

If the US congress signs a treaty with England which agrees that the US Presidents will no longer have any power in exchange for the English Prime Ministers too also no longer have any power, it doesn't matter because congress didn't have the power to write such laws in the first place.

Treaties are fine, and they certainly can affect local laws and should if they were made in good faith and are reasonably beneficial to both countries. The problem is that some treaties are not about solving problems but are rather an intentional collusion between the governmental representatives to push unwanted law on one or both countries. That's what I object to.

Say two countries have a particular copyright law, say 50 years in one and 60 years in another. So the two representatives, probably both receiving substantial funds from pro-copyright media conglomerates, get together and arrange a treaty that says they will extend copyright to 100 years. Well gee guys, we'll have to change our laws! Both countries missed out on reasonable legislative processes.

I didn't see SOPA like protests (wihtin the US) for the plethora of "Free-Trade" agreements that the US has put forward in other countries, that clearly put the US at an advantage and undermine (or attempt to) local markets. In fact I'd bet that there were 0 protests for some (all?) of those agreements.

There has to be some personal accountability. The "I just live here, but have my own views" doesn't really cut it.

Living in a democracy and saying "That's the position of the government... not mine". While, not completely invalid, is annoying to hear.

I personally vote every chance I get. I emailed Mark Rubio a co-sponsor on SOPA as well as mutual contacts of his and mine to voice my displeasure and to try to leverage my influence to get a meeting (before he changed his mind), I had an effect he changed his position (I along with a lot of other people, I don't want it to appear that I am taking sole credit for his change of position). I don't know what else one can expect, but for many of us, we just live here now. We are outnumbered and outgunned. Short of leaving our entire life and more importantly family to move away from it, there is not much we can do other than rage against the machine. Part of that rage is to say I don't support it and it is the governments position and not mine. I am not going to hold a position just because a group of people think it is valid nor should we be held accountable for the action of the collective. I believe in sovereignty all the way down.

A little hypocritical to say the least.

Absolutely, I agree that other nations should be free to protect their interest. I am a huge fan of the republic that America used to be before the Civil War, the seed of federalism was planted then it has blossomed since then. I am all for a coalition of small governments that have unique and independent laws that best governs their citizenry. Just because I am from the US does not mean that I support what we have become. I absolutely hate the fact that we enforce our will on other nations and our chickens are coming home to roost for sure on this one.

> I am a huge fan of the republic that America used to be before the Civil War

Where men were held as slaves and women didn't have the right to vote? For all our problems now, I think we are a much freer country today than we were in 1860.

My intent was not to re-fight the Civil War. But just like the Iraqi war it was not all roses and liberating the Iraqi people. A lot of good came from some of the issues surrounding the Civil War. A strong federal government was not one of them. We are well served to remember the things lost when tallying the things gained. The cultural issues of the day where not the product of a republic nor where they a product of a federal government. I can be a fan of the system of government without advocating for a return to the cultural norms of the time.

A system of government that put states rights above human rights is exactly what allowed slavery to persist.

I differ on that, the cultural norm of believing that humans can be owned, that existed over centuries dating back to the Mesopotamia is what allowed slavery to persist.

One of the reasons slavery in America was so brutal was because English common law had no legal history or precedent of slavery, and hence had to apply the laws of personal property, or chattels, to slaves (hence the term "chattel slavery"). Other legal traditions actually had separate provisions for slaves. It wasn't a "cultural norm" for our culture until the trans-Atlantic slave trade, centuries away from your mark.

The casus belli of the Civil War was the secession of the southern states in order to prevent federal interference in the institution of slavery. The result of the war was the federal abolition of slavery. The exact same conflict was reenacted a century later, albeit more peacefully, over segregation and the disenfranchisement of blacks. In both cases, the underlying conflict was between states rights and human rights, and in both cases the better side won.

I think you paint a skewed version of history, slavery was alive and well in England until 1772 with the James Somersett's decision. We can argue over the semantics as to whether a serf is a slave by legal letter, but for most it is commonly accepted that the institution of slavery existed in England until 1772. It also existed in many colonies that existed under many structures of rule. It's existence, in England can be traced to Rome (it actually existed in a form even before Roman occupation), who can trace it to Greece who can trace it to Egypt who can trace it to Mesopotamia. In each of those empires, the rights of slaves ebbed and flowed just as today the rights of citizens ebb and flow. In England slaves had some rights, in the US they had less, in Haiti under the French even less, but it was all slavery and they can all trace their roots back to Rome and as such back to Mesopotamia. But to argue that what England had was not slavery in comparison to the US is akin to arguing what the US had was not slavery in comparison to Haiti. The reality is very different though, they where all indentured, and deprived of rights, to most that classifies as slavery. Roman slavery was also instrumental in shaping the western views on slavery (which was a pretty brutal view).

The republic is no more or less responsible for slavery than any other form of government, with maybe the exception of Fascism. Abolitionism and industrialization can take far more credit for the elimination of slavery than the structuring of a government. The fact that slavery was not abolished in Norther states until 4 years after the war started lends credence to the fact that the institution of slavery fared no better due to a strong central government in DC, what ended slavery was a combination of changing cultural norms (the abolitionist possessing the stronger moral argument) and Industrialization requiring the need for skilled and educated workers. These are the constructs that ended slavery not a strong central government. Hitler had a strong central government, and it could be argued that he enslaved millions. It is not the system of government but rather the morals and virtue of the culture.

in both cases the better side won

Yes in much the same way the better side won in the Iraqi war. Some good will come of it and some bad will as well. But with conflict there are always a host of agendas at play, boiling war down to "liberating the Iraqi people" does us a disservice and makes us far more susceptible to repeating past mistakes, because every war that has ever been fought has been justified by a moral cause. But morality does not emerge from acts of immorality. It emerges from the enlightenment of moral people such as the abolitionist, or Dr. King or Gandhi.

War is never morally virtuous, it is men killing men and usually for resources or power, forgetting that, allows us to succumb to moral propaganda, when we need to be vanguards of peace.

It seems you didn't understand my point. It was the introduction of slaves through foreign trade, and not any native cultural norm, that caused American slavery to begin. It wasn't a native cultural norm.

> The republic is no more or less responsible for slavery than any other form of government, with maybe the exception of Fascism.

We aren't talking about republics, we're talking about federalism. They're completely orthogonal things. It was the directed imposition of federal power over the states that ended slavery, segregation, and black disenfranchisement. That's a historical fact. I don't know why you mention Dr. King; Dr. King himself was standing right next to President Johnson when he signed the Civil Rights Act of 1964 and the Voting Rights Act of 1965. And he more or less began his "I Have a Dream" speech by referring to Lincoln explicitly as "a great American, in whose symbolic shadow we stand today".

It was the directed imposition of federal power over the states that ended slavery, segregation, and black disenfranchisement.

In the US, in other countries it was the abolitionist movement and that was my point. Even in the US it was the appeasement of strong abolitionist, preservation of the Union at any cost was always the foremost concern, Lincoln said so himself, the moral argument of the issue was always secondary to preservation of the Union.

We will never know if the institution of slavery would have ended peacefully, but what we do know is that culturally slavery was becoming unsavory, the abolitionist where winning the moral argument, as they had done in England and we do know that the war and ensuing reconstruction brought bitterness and resentment that lasted for almost another 100 years. There are some who believe that the cultural trend, that was happening around the globe would have continued and that slavery would have lost the moral argument bringing about it's demise by peaceful measures. If that is the case then the war was a travesty, because we may have saved ourselves 100 more years of immorality and a second social uprising to finally and truly free the all people and that is the problem with war, you only get to see the victors side of history.

Other countries, by and large, already either had centralized systems or didn't have climates suitable for plantation farming in the first place. It's useless to speculate about how slavery and the later oppression of black people could have ended in America: if Southern whites were willing to fight and die to preserve the institution, they certainly weren't on the fringe of abolishing what was essentially the cornerstone of their entire culture and economy for "moral reasons". It's easy to abolish slavery when there's no good rationale for it; even in the North, abolitionists with genuine concern for black people were a minority compared to people who just thought it was bad economics or who felt that concentrated wealth in the hands of slaveowners had the potential of reducing economic opportunities for free white farmers.[1] Since you're so fond of comparing things to Iraq, an interesting analogy is to think about how much you hear people complain about the number of American casualties in Iraq, or the cost of the war and its impact on the federal debt and deficit, and compare that to the small number of bleeding heart liberals complaining that it was bad for the Iraqis. How many times were dead US troops a talking point compared to dead Iraqi civilians? This isn't a criticism, but a point of illustration--just as white Americans today don't care about Iraqis, white Americans in the 19th century didn't care about black slaves.

The fact is, "states rights", and the whole idealization of the pre-Civil War system in America, is a broken and evil ideology that was used as an indirect defense of slavery in the 19th century and segregation and disenfranchisement in the 20th. What you are really saying is that you value that system of government so much that you would prefer to let people continue to be enslaved until such time as their enslavers felt so inclined as to free them out of their own moral goodness. And I would like to know why.

[1] This is an interesting precursor to contemporary complaints about big business, for instance Wal-Mart. Today, people complain that Wal-Mart is a huge company that puts local businesses out of business. In the 19th century, people complained that plantation slaveowners were rich people who put small-time family farms out of business, especially if slavery were legal in the expanded western territories. Legalized slavery would allow slaveowners to expand their operations and use their stock of slaves to farm a lot of land at scale, leaving nothing left for the white settler who wanted to go build his own farm in the west.

Now all men and women are slaves. Just buy a gun and not register it. You sir, are deluded that we are freer.

You're right, gun registration is the moral equivalent of chattel slavery. Even though it doesn't exist in my state, or in fact in most states. And clearly, gun registration is the obvious effect of the Civil War.

I don't see how it was an obvious effect of the civil war, the first registration legislation came shortly after prohibition in the form of the National Firearms Act under the argument that it was need to help control the mob.

I was being sarcastic.

OK sorry, I don't pick up on it some times in written form.

Well, first of all, the justices are not legislators, they belong to the judicial branch whose job it is to interpret and apply the law that exists. Including treaties that have been signed.

Right the judge said that congresses move was to align the two. She made the decision that their lead was more important. Both acted in direct contrast to the interests of citizens. My point being that neither are acting in the interest of the American citizens.

Personally if the USA signs a treaty in good faith that they themselves heavily influenced, I would expect them to follow it. Sometimes that may come into conflict with other expectations, such as public domain works becoming copyrighted again. So then the expectations have to be compared and that's what the justices did.

To be honest, I think it's the attitude towards copyright vs freedom that is skewing the perception here. It's true that copyright provides government monopoly and special interests are able to extend it, and I don't like that. But when we sign a treaty we should be expected to uphold it.

I disagree, if we sign a treaty and find that it is in direct contrast to rights afforded by US law, we should either nullify the treaty or correct the US law not back door legislation via signing a treaty and have the judicial branch overrule the US law. They are compiling a strategy to utilize this very tactic with the UN gun bill. To me it reeks of a way for the legislative branch to dodge accountability for unsavory laws.

Out of curiosity, how do you come to the conclusion that the treaty was heavily influenced by the USA?

"The Berne Convention was revised in Paris in 1896 and in Berlin in 1908, completed in Berne in 1914, revised in Rome in 1928, in Brussels in 1948, in Stockholm in 1967 and in Paris in 1971, and was amended in 1979"

"The United States initially refused to become a party to the Convention, since that would have required major changes in its copyright law, particularly with regard to moral rights, removal of the general requirement for registration of copyright works and elimination of mandatory copyright notice. This led to the Universal Copyright Convention in 1952 to accommodate the wishes of the United States. But on March 1, 1989, the U.S. Berne Convention Implementation Act of 1988 was enacted, and the United States Senate ratified the treaty, making the U.S. a party to the Berne Convention,[4] and making the Universal Copyright Convention nearly obsolete.[5]"

[http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protec...]

Doesn't sound like the USA had anything to do with it. All seems a bit like circular reasoning to me. Another country creates a treaty, you ratify it, and suddenly your "hands are tied". (I'm not saying I have any opinion on the treaty itself, but the process seems a bit concerning.)

Perhaps I misread the article, but I thought that a lot of the Universal Copyright Convention stuff wound up in the Berne Convention.

"This led to the Universal Copyright Convention in 1952 to accommodate the wishes of the United States."

No, that's only the case in the lower courts. The Supreme Court's sole job is to uphold the constitution and they are free to ignore everything else.

And the constitution states[0]:

> This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land

(note that the constitution does not explain how to resolve conflicts between treaties and the constitution: while laws "shall be made in Pursuance [of the Constitution]" no such restriction is associated with treaties)

[0] http://en.wikipedia.org/wiki/Article_Six_of_the_United_State...

Do you honestly think the constitution was setup so the congress and the president can simply ignore the Constitution with Treaties?

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. This statement binds Judges within each state to uphold the Constitution, Federal law that are in agreement with the Constitution, AND Treaties.

The rights of US citizens should be the foremost concern of a US legislator and when it comes to satisfying a treaty compromising those rights the treaty or international precedence should be thrown out the window.

Article VI of the Constitution explicitly disagrees with you: "[A]ll Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

In other words, the sovereignty was explicitly sacrificed when the treaty was entered into-- and that's the way the Framers intended it.

Yes I understand the law, my protest is in the fact that it is now being used as a technicality to back door legislation that is against the people. My personal feelings on government is that they should act as a framework of government for the citizens interests first. Which is not what we have, we now have a government that finds every loophole available to act in direct contrast to the interest of the people. I don't think I implied that what they where doing was not available to them by the letter of the law. Rather I believe that I stated that I am sick of the letter of the law being a tunnel for anti-rights legislation. Again I go back to the UN small arms gun treaty. Given that they cannot deal with guns in the current domestic framework available, they are position the UN small arms treaty to help them deal with it, through this same backdoor. While it is technically legal, it is totally corrupt.

Interesting issue. I wonder if it would be possible for a country to set up an extremely long copyright term (with a huge administrative fee) that would have to be respected under US law (and other adopters of the treaty).

I'm sure many music/movie studios and authors would gladly pay $100K to copyright each of their works internationally for 500 years...

Creative thinking, but I'd have to disagree with your conclusion. The present value of the additional years of copyright would be very low, especially taking into account 1. the probability that the work will still be a source of value 100 years (not the exact number, but for the sake of argument) in the future and 2.The possibility of changes in the local jurisdiction or US law over that time.

Your idea would mean paying 100k for the possibility of receiving some additional value 100 years in the future. The first 100 years of value are already protected under US law.

tl;dr; There are some foreign works that are still copyrighted overseas, but the copyright has expired in the US. This ruling allows the Congress to reinstate the copyrights for particular works so that the copyrights apply for the full length of their term in the local country that they were originally created/copyrighted in.

Is there any limit to what it does past this? If the intention is to fit in with the worldwide agreement by doing what you describe, it should be written in a way that it can't be used to extend Mickey Mouse's protection or something shortly before it.

What surprised me most about the article is that Lawrence Golan, one of the plaintiffs, implied that his orchestra had not been paying licensing fees for works by Prokofiev and Shostakovich. Are they really playing from unedited copies of the original manuscript?

For those unfamiliar, in the classical music world, musicians almost always play from editions of the original work. Those editions are eligible for copyright protection as derivative works of the original. As a result, if you perform a Kalmus edition of a work by Bach, you would owe Kalmus royalties, even though the original work by Bach is in the public domain.

Obviously, since much of the classical music repertoire was composed before 1923, anyone is free to make their own editions of popular works, provided they have access to the actual original. In practice, however, very few do. This is because creating a definitive edition of a musical work without misprints is painstaking work that requires considerable amounts of time and expertise.

Wow, not surprised about the ruling. Kind of surprised about this quote though:

Justice Ruth Ginsburg said “some restriction on expression is the inherent and intended effect of every grant of copyright.”

What are you surprised about?

While we can argue about whether the benefits from said restriction are worth the costs, it's clearly the case that copyright is intended to restrict expression and necessarily does so.

That quote is a perfectly accurate statement of what the Constitution says. Copyright inherently restricts freedom of expression, to the extent that reproducing work is a form of expression. The Framers wrote both the Copyright Clause and the 1st Amendment into the Constitution and left the courts to balance the two clauses, which is exactly what happened here.

That is utter insanity. And only two Justices understand. This is a dark day for the U.S., and the vast majority of the population neither knows nor cares.

It's all up to Lessig now.

It's all up to you.

(US Citizen) The title of this post is a bit misleading and I'm having a hard time seeing why there's a problem or disagreement here.

The ruling was specifically focused on foreign works as they relate to the Berne Convention. This international treaty binds signatory nations to the copyright protections provided in countries where the original art was created. It would apply to both US copyright holders to protect their works abroad and foreign copyright holders where their works are used here.

The Wikipedia page on the Berne Convention has some really interesting facts on this treaty and you should read it before voicing opposition to the SCOTUS ruling or claiming "American Exceptionalism" is being run over by a truck. This is not a bad ruling and the 6-2 vote suggests 1 judge appointed by a liberal President agrees with the argument. Ne, if you get into the opinion (link below) you'll find that two conservative appointees dissented while the remaining justices agreed (sans Kagan who recused). The point is that this was hardly a "party line" or ideological divide.

The official opinion here: http://www.supremecourt.gov/opinions/11pdf/10-545.pdf

Some worthy quotations from the Wikipedia page found at: http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protec...

Before the Berne Convention, national copyright laws usually only applied for works created within each country. Consequently, a work published in United Kingdom (UK) by a British national would be covered by copyright there, but could be copied and sold by anyone in France. Likewise, a work published in France by a French national could be copyrighted there, but could be copied and sold by anyone in the UK. Dutch publisher Albertus Willem Sijthoff, who rose to prominence in the trade of translated books, wrote to Queen Wilhelmina of the Netherlands in 1899 in opposition to the convention over concerns that its international restrictions would stifle the country's print industry.

The United States initially refused to become a party to the Convention, since that would have required major changes in its copyright law, particularly with regard to moral rights, removal of the general requirement for registration of copyright works and elimination of mandatory copyright notice. This led to the Universal Copyright Convention in 1952 to accommodate the wishes of the United States. But on March 1, 1989, the U.S. Berne Convention Implementation Act of 1988 was enacted, and the United States Senate ratified the treaty, making the U.S. a party to the Berne Convention, and making the Universal Copyright Convention nearly obsolete.

Editorial. I believe in American exceptionalism on a number of fronts including some trade issues. But, the notion that any individual or group of people from one country can merely disregard the copyrights of and profit from works created in another is ludicrous. I feel bad for the plantiffs -- the orchestra members who brought the suit. They have been treated unfair, not by the SCOTUS, but by a general failure of US enforcement of foreign copyright as provided by the treaty.

Just my $0.02

Justice Breyer can’t by any reasonable measure be described as a “conservative” Justice relative to the current Court, and “conservative appointee” is a pretty useless (or in this case grossly misleading) label.

Whoops. I didn't realize I had made that mistake. And instead of "conservative appointee" I intended to reference the appointing President. Though, it does strengthen the argument for the mixture of majority and dissenting opinions. Thanks for the correction.

I'm a bit puzzled by the reasoning, though. "The top court, with Justice Elena Kagan recused, said Congress’ move to re-copyright the works to comport with an international treaty was more important."

OK so they made their decision on the basis of there being a treaty... Does this mean that any time you want to sidestep an actual examination of the merits of an argument in the Supreme Court you just need to ensure there's an international treaty in your favour? How does the US become party to a treaty, in any case? I'm guessing it has something to do with Congress. This seems like a bit of circular reasoning.

Does this mean that any time you want to sidestep an actual examination of the merits of an argument in the Supreme Court you just need to ensure there's an international treaty in your favour?

That ought to do the job; Article VI of the Constitution plainly states that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

In other words, if there is a treaty obligation, that trumps all other considerations.

How does the US become party to a treaty, in any case? I'm guessing it has something to do with Congress.

Article II, Section 2 of the Constitution spells this out: "[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur..."

This seems like a bit of circular reasoning.

How so?

Because the constitution is setting up the rules for what can completely superceed it. Basically: Congress and the President must follow these rules when governing the country, except when they agree not to, as declared in these same rules.

I get the need for treaties and and federal laws to superceed local laws, but that laws have to be made pursuant to the Constitution while treaties only have to be made under the authority of the United States, defined as the President and 2/3 of the Senate, is odd. Seems as though they could legally eliminate all constitutional obligations through treaty, or even enter into a treaty to use a different constitution.

http://en.wikipedia.org/wiki/Bricker_Amendment#Legal_backgro...

Thanks for putting into words what didn't "feel" right to me; my use of "circular reasoning" wasn't quite the appropriate phrase, I guess.

This is not really circular at all, merely self-referential; the Constitution also provides a process for it to be amended, so any and all of it's provisions could be repealed or rewritten without having to get a foreign government involved in the equation at all.

Of course, all of the parties involved (President, Senators, etc.) have sworn an oath to uphold the Constitution.

I understand the creepy feeling, though. And I'm pretty sure that through treaty, they've dramatically lowered the bar for entering into a treaty to simple Presidential whim. According to Wikipedia, "executive agreements" outnumber actual treaties by 10:1.

http://en.wikipedia.org/wiki/Treaties#United_States_law

The US constitution's "supremacy clause" says that:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land

so treaties seem to have quasi-Constitutional authority, in that they are, like the Constitution, the "supreme law of the land". But the text doesn't clearly specify how to resolve conflicts between treaties and the Constitution itself. It's a bit of an open question since the U.S. has tended not to enter into treaties that present it square-on, but the Supreme Court seems willing to enforce some restrictions on what exactly a treaty can do. If there's a direct conflict, the Constitution supersedes treaties under http://en.wikipedia.org/wiki/Reid_v._Covert, but in more gray-area cases the courts seem to give more leeway to treaties than normal laws, due to some vague mixture of the supremacy clause and general principles of deference to / non-interference with the "political branches" on foreign policy.

> Does this mean that any time you want to sidestep an actual examination of the merits of an argument in the Supreme Court you just need to ensure there's an international treaty in your favour?

You're mis-interpreting things: as michael_dorfman notes, according to the constitution of the united states of america any international treaty signed by the United States's administration is the binding law of the land.

> How does the US become party to a treaty, in any case? I'm guessing it has something to do with Congress.

The executive (the president) ratifies it and the Senate contents to it (with a two-thirds vote)

The Constitution itself creates an exception to the 1st amendment through the Copyright Clause. When two clauses of the Constitution are in tension, the Court usually applies a balancing test. Here, the existence of the international treaty weighs in favor of upholding the law.

If you compare Breyer to the general population you may call him conservative, but compared to Alito, Thomas, Roberts, and Scalia, he's very liberal.

Yep. You are correct. I got the Presidents who appointed whom wrong. I stand corrected.

Great, so when copyrights expire in those nations they should expire in the US.

So James Joyce should be PD in the US this year! Good news!

My main problem with the way that copyright law has been "harmonized" between different countries is that the "harmonization" is always done by increasing the copyright restrictions of the freer country, rather than by loosening the copyright restrictions of the less-free country. It's like a ratchet, always pushing for more and longer copyright restrictions.

> the "harmonization" is always done by increasing the copyright restrictions of the freer country

In addition, the freer country harmonise increasing its protection to the less free countries' protection + some additional protection, so that another round of harmonisation is now required by the other countries. And so on…

Berne convention only constrains a life+50 copyright. For example, in Canada (signee of the Berne convention), Prokofiev (dead 1953)'s works are in the public domain. So why would Berne convention force USA to remove "Peter and the Wolf" from public domain?

I'm no expert and I could be reading it wrong, but from what I understand the treaty allows for the "rule of the shorter term" though wikipedia states that not every country has "accepted this rule."

While this might be frustrating on the surface, this is exactly the sort of thing that should be decided by the lawmakers. You might personally dislike what the US legislative branch has become, but if you follow that it is acting in the interests of the citizens who elected them, this is the correct decision.

Ideally, yes. However, Congress' approval rate is 13% right now. That's not anywhere near "acting in the interests of the citizens who elected them."

But I bet Congress' approval rate among lobbyists and corporate campaign donors is much higher. After all we have the best Congress money can buy.

who do you think the 13% are?

I beg to differ, the Constitution clearly specifies why copyright should exist: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

How does retroactively adding copyright to public domain works in anyway "promote" it's already been accomplished. This the same argument that was used Eldred vs. Ashcroft where this argument also failed. It was a bad ruling then and it's a bad ruling now.

If we want to have this decided by the lawmakers then we should amend the Constitution to grant this power.

Perhaps, because the world doesn't begin and end with the US east and west coast.

If you ignore the fact this is still under copyright overseas, you are setting the precedent that they can do the same in return. No?

the problem is that many times the world follows US laws and regulations and applies those locally (also: student being deported to US based on broken UK law that UK itself wasnt interested in prosecuting)

What "promote the progress of science and useful arts" is such fuzzy language, deferring to the legislature's idea of what promotes that progress is as reasonable a decision as imposing the Court's own view.

Of course adding a given public domain work back into copyright doesn't promote the creation of any specific work, but harmonizing American copyright law with European laws, generally, might arguably promote creation of works.

The key phrase in the clause is that:

[The Congress shall have Power]* to... [secure] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

*) Article I, Section 8.

Like the other enumerated powers, the language of the Constitution gives Congress a lot of leeway in exercising that specific power.

Copyright terms should be reduced to the original 14 years, if not less, retroactively. Copyrights should be non-renewable. Obtaining copyright should require registering each work with the copyright office. There should be an annual fee for maintaining a copyright that is proportional to the revenue received from the copyright. There should additionally be stiff penalties for asserting copyright when you do not actually have it.

I have to register my GPL'd script to protect my attribution? No thanks.

Everything should be immediately copyrighted if you mark it and specify its license terms.

14 years is long enough for total copyright but attribution rights should last forever.

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