[A2k] See why you should be scared to death of ACTA?

Manon Anne Ress manon.ress at keionline.org
Tue Jun 22 13:49:58 PDT 2010


The Golan case is depressing:

QUOTE:

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

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

END of QUOTE

from:

Terrible News: Court Says It's Okay To Remove Content From The Public
Domain And Put It Back Under Copyright
from the awful-ruling dept
http://techdirt.com/articles/20100621/2320049908.shtml

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

But, of course, it couldn't last.

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

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

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

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

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

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

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

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

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

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

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

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

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

Which part of "Congress shall make no law... abridging the freedom of
speech" does this court not understand?

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

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





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