Comment by jerf | Hacker News Reader

Comment by jerf | Hacker News Reader

"At O'Reilly, we had a narrow escape a few years ago. "Head First Java" starts each chapter with an image taken from an old movie for which the copyright had expired, placing the movie in the public domain. Someone collected several of those movies into DVDs and copyrighted the DVD. Luckily, we discovered it (and were able to find new images) before we published the book and ended up with a court summons."

I don't think that's how it works. You can take anything you want out of the public domain, make minimal changes to it meeting a certain standard, and copyright the result, but that only gives you a copyright to the result. You don't suddenly own the thing in the public domain, which would be utterly absurd.

They may have been concerned about getting sued by someone claiming they took it from their resulting copyright work rather than the original public domain work, but even that would have been very easy to defend against and a lawsuit in bad faith to boot. (And those are just a constant threat, regardless.)

I'll copy to only being a very interested layman and not a lawyer, but I've never heard of individuals being able to just reach out and grab things out of public domain at will and fully own them. If that were possible then there would simply be no such thing as public domain, and that's not the case.

O'Reilly may have (expensively) prevailed in court heretofore, but now we have the Supreme Court declaring that works once in the public domain can be retrieved into private possession. It's an open question whether that ruling would have applied in this case - all the better to explode the legal fees. Good call by O'Reilly.

Which ruling was that? do you have a link?

Here: http://www.cbsnews.com/8301-201_162-57361290/court-allows-re...

It was only a few days ago.

I thought you might be referring to that. That ruling isn't really a precedent for "Public works being re-copyrighted". It was a little more complex and related to a treaty the U.S had agreed to.

The works in question were still under copyright in other countries.

IANAL, but I feel pretty confident that you are egregiously misrepresenting that ruling. When you say "works can be retrieved into private possession," that makes it sound like you can pick out a public-domain work and claim it for your own, which is not at all a fair summary of what the court said. It's like hearing that locking somebody up without food or water counts as torture and false imprisonment, and then proceeding to tell everyone, "It's an open question whether you can legally refuse to give someone your food when he asks." I do not believe the question is all that open.

As anybody who takes the time to read the ruling will see, the Supreme Court ruled that Congress has the power to make laws that retroactively extend the copyright of certain works that had fallen into the public domain, and specifically said that Congress was empowered to do so if a treaty required it. I do think it's a bad ruling, but it is a far cry from a private party being able to swoop in and snatch works out of the public domain.

Jerf is correct in this. Public domain materials remain so except as modified or improved by the creative work of others and, in that case, only the creative improvements fall under copyright, not the original materials.

The recent case of Golan v. Holder held that Congress has the constitutional power to revive the copyright on foreign works that had fallen into the U.S. public domain as part of its treaty-based efforts to promote the arts through reciprocal arrangements with foreign countries. It further held that such "re-copyrighting" doesn't violate the first amendment rights of persons who had relied on the prior public domain status of the works that had been removed from public-domain status.

The Golan case is, to me, a really absurd outcome and reflects a weird mix of liberals on the Court (e.g., Ruth Bader Ginsburg, who wrote the opinion) upholding sharp encroachments on free speech and conservatives (who joined in a 6-2 ruling) upholding rather large assertions of constitutional legislative power where a strict construction of the constitutional language ("limited times," etc.) would seem to point in the opposite direction. I think it is a bad decision. But it by no means empowers any private party to try to claim that anything in the public domain somehow shifts back to copyright status by virtue of what that private party does. The case is irrelevant to that issue.

So let's say that you release 2 DVDs with 3 movies each. Then a book, such as Head First Java has pictures in it from all 6 movies and no other. Clearly the selection of pictures in this case was inspired by the selection done for those 2 DVDs, is it not?

Bad example. Releasing those DVDs doesn't give you that much rights over the still-public-domain content.

Look, it's not as if copyright isn't being abused rampantly by all sorts of parties from the top to the bottom, but let's not get stupid about it. There's no copyright doctrine that lets you own the entire idea of a particular list of six movies. Even to the extent you can have a collection copyright [1], that merely limits someone from releasing two DVDs with the exact same movies, if indeed it would even limit that as you'd at least face a bit of a challenge in convincing a judge that meets a minimum creativity bar. (Collections covered by that clause are generally somewhat larger.)

Now more than ever, it's important to know exactly what we're facing and exactly what we're not facing, because if we let ourselves get sidetracked by entirely non-existent threats that's energy we're not spending on the real ones.

[1]: http://www.sacred-texts.com/sect103.htm

I believe the point he was trying to make here is that who owns the copyright doesn't matter. If the company is willing to sue you and into bankruptcy and you don't have the money to fight back, you're screwed. "Justice" doesn't matter.

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