UPDATED: Golan v. Holder Merits Brief Explains Why Congress Is Not Allowed To Privatize The Public Domain

UPDATE: The government's brief and our reply are now posted below. Oral argument is scheduled for October 5. Today we filed our opening brief in the U.S. Supreme Court challenging Congress's power to remove works from the public domain. For 200 years, the Copyright Act placed a huge array of works into the public domain through a combination of term limits and eligibility requirements. It created a vast reservoir of knowledge, learning and artistic creativity that millions of us use every day. Since creating the public domain in 1790, Congress amended the Copyright Act again and again to cover new types of works and lengthen copyright terms. But each time it did so, it left the public domain completely intact. It respected the fact that the public domain is public property, and cannot not be taken away. That changed in 1994, when Congress passed a law that removed a vast body of foreign works from the public domain. This body of works included symphonies by Sergei Prokofiev, Igor Stravinksy and Dmitri Shostakovich; books by C.S. Lewis, Virginia Woolf and H.G. Wells; films by Federico Fellini, Alfred Hitchcock and Jean Renoir; and artwork by M.C. Escher and Pablo Picasso. The Register of Copyrights estimated the works affected by this law "probably number in the millions." Congress took the rights in these works from the American public and handed them over to foreign authors and their heirs in the express hope that foreign countries would reciprocate by giving U.S. copyright owners new rights in works that were in the public domains of those foreign countries. In other words, Congress decided to give away the public's property -- and the important speech and expression rights that go with it -- in the hope this might put more money in the pocket of U.S. copyright owners. In the brief we filed today, we explain why the Constitution does not allow Congress to privatize the public domain and why doing so here violated the First Amendment rights of our clients and the American public. We expect the Court to hear the case this fall, with a decision to follow several months later.

Comments

Surely the US Supreme Court should be on your side. What made the Congress act this way? Aside from thinking of more money? what else could it be?

Even though I don't have a legal mind, I read all 65 pages of your brief and noted the multitude of times Congress expanded copyright law without once removing anything from the public domain. The writers of the brief made dozens (or more...I didn't do an actual count) of historical points where Congress took great care to *not* tamper with anything in the public domain. I wish I had the eloquence to express my shock and amazement that Congress could actually do such a thing.

What does this mean to the 200 million or more Americans who aren't even aware of the 1994 law? I'm a huge, life-long fan of H.G. Wells, own many copies of his books, and frequently quote him. Does this mean that private citizens such as myself are in violation of the law when I do quote him? And what about the writers, researchers, students of music, musicians, artists, teachers of literature/art/music, etc...what can they still do...what can they no longer do? Are certain books no longer taught in American schools? (I graduated from high school in 1977 so don't know what goes on there, anymore.)

And how can the U.S. Supreme Court *not* see that what Congress did in 1994 goes against all our previous copyright/public domain laws, and against the First Amendment? What happens if they uphold this outrageous law?? Why did Congress decide to go against the 1988 Berne Convention Implementation Act...which did not grant copyright to works in the public domain, nor remove *anything* from the public domain.

For me, the first full paragraph on page 44 of your brief most eloquently expressed the main points of why Section 514 (the 1994 law in question) is in violation of the First Amendment, and of free expression, and even the desire to create new works of art/music/literature.

I'll be following what happens. How long does it take for the U.S. Supreme Court to respond to new briefs/cases? (And please pardon my complete lack of legal know-how...how to quote things, etc.)

9) Two plus two is always four. Anthony Falzone Esq argued recognizing copy[]right for the first time was adding to the zero-year copy[]right period already granted. The Stanford law professor argued this recently in Golan v. Holder, (10-545) on Oct 5th 2011. Mr Neeley contends being pro se and in forma pauperi means oral arguments are not considered despite Mr Neeley knowing more about copy[]right law than Stanford law professor Anthony Falzone Esq does. Professor Falzone orally made a complete fool of himself while not recognizing the entire Free Speech argument operates more in the interest of enforcement of copy[]right than violation of copy[]right.
The "public domain" argument is ignorant. All the gold in Ft Knox was once removed from this mysterious "public domain".

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