Supreme Court OKs Public Domain Works Being Copyrighted

Yesterday the United States Supreme Court issued a truly regrettable decision in the much anticipated copyright case Golan v. Holder.  At issue in this case was nothing short of whether the United States Congress has the authority to restore copyrights in works that were in the public domain, or in other words whether Congress has the authority to strip works from the public domain and grant copyright protection.  In one of the more intellectual dishonest decisions I have ever read, the U.S. Supreme Court, per Justice Ginsburg, determined that Congress can pretty much do whatever it is that they want with respect to copyrights.  Removing works from the public domain and restoring copyright protection is said to be a power granted to the Congress under the Constitution, and there are no legitimate First Amendment concerns.

To all those who can read the Constitution it has to be clear that the Supreme Court’s decision in Golan v. Holder is absurd.  It is a ridiculous decision that lacks intellectual honesty and defies common sense.  Further, the facts of this case provide ample ground for the suspicions of many who wonder why it is that the United States is so interested in losing its identity and compromising Constitutional principles in order to facilitate some ill conceived plan to join the world community.  Simply stated, treaties and international law cannot trump the Constitution.  With all due respect to the six Justices who ruled in favor of stripping works from the public domain, the Constitution does not support this decision and any attempts to argue to the contrary are insulting and show a contemptuous understanding of the history and role of intellectual property in America.

This fiasco starts with the Berne Convention for the Protection of Literary and Artistic Works, which took effect in 1886.  The Berne Convention is the principal international agreement governing copyright law. Berne’s 164 member states agree to provide a minimum level of copyright protection and to treat authors from other member countries as well as they treat their own.  The Berne Convention, however, also mandates certain minimum protections for copyrighted works.  Of particular importance to this case is the fact that under Article 18 of the Berne Convention a work must be protected abroad unless its copyright term has expired in either the country where protection is claimed or the country of origin.

Throughout most of the 20th century, the only foreign authors eligible for Copyright Act protection in the United States were those whose countries granted reciprocal rights to American authors and whose works were printed in the United States.  Additionally, from the first Copyright Act through much of the 20th century, U.S. copyright protection was conditioned on compliance with certain statutory formalities, such as registration of the copyrighted work, renewal of the copyright registration and affixing to published copies notice of copyrighted status.  Failure to comply with these formalities would prevent a copyright in the United States.  Thus, there were numerous foreign works that did not enjoy protection within the United States and were, in fact, within the public domain.

When the United States joined the Berne Convention in 1989, it did not protect any foreign works that had previously fallen into the U. S. public domain.  In 1994, however the ante was upped thanks to the Agreement on Trade-Related Aspects of Intellectual Property Rights, which mandated implementation of Berne’s first 21 articles.  Failure to implement the first 21 articles would result in an enforcement action by the World Trade Organization.  Failure to comply with a WTO ruling would subject the United States to tariffs or cross-sector retaliation.

In response, Congress applied the term of protection available to U. S. works to preexisting works from Berne member countries. Section 514 of the Uruguay Round Agreements Act (URAA) granted copyright protection to works protected in their country of origin, but lacking protection in the United States for any of three reasons: (1) The United States did not protect works from the country of origin at the time of publication; (2) the United States did not protect sound recordings fixed before 1972; or (3) the author had not complied with certain U.S. statutory formalities. Works encompassed by §514 are granted the protection they would have enjoyed had the United States maintained copyright relations with the author’s country or removed for- malities incompatible with Berne.

As a result of Congress enacting §514 foreign works that were previously in the public domain in the United States were “restored” to.

The petitioners in this case were orchestra conductors, musicians, publishers, and others who formerly enjoyed free access to works §514 removed from the public domain. In fact, these petitioners detrimentally relied on the laws of the United States and engaged in various business and creative activities under the knowledge and rightful belief that works within the public domain were capable of being freely used.  They argued that by passing §514 of the URAA Congress exceeded its authority under the Copyright Clause and transgressed First Amendment limitations.

Initially, in the United States Federal District Court for the District of Colorado the parties agreed, and the District Court determined, that Section 514 is a content-neutral regulation of speech subject to intermediate First Amendment scrutiny.  The District Court determined that while the Government does have a “legitimate interest in complying” with the Berne Convention, the exceptions in Article 18(3) demonstrate that “Congress could have complied with the Convention without interfering with Plaintiffs’ protected speech.”  The District Court also held the Government had presented no evidence sufficient to show that providing protection for foreign works beyond that required by the Berne Convention would generate any additional benefits to U.S. authors.

On appeal the Tenth Circuit reversed the judgment of the District Court and held that Section 514 does not violate the First Amendment.  The Tenth Circuit held the Government has an important interest in securing foreign copyright protection for U.S. authors independent of any interest in complying with Berne.  It concluded that Congress had substantial evidence to conclude that providing enhanced protection for foreign authors in the U.S. might induce foreign nations to reciprocate by providing enhanced protection for U.S. authors abroad, whether or not that enhanced protection was required by Berne.  The Tenth Circuit acknowledged that Congress might have been able to comply with the Berne Convention without compromising Petitioners’ speech interests, but ultimately concluded that whether another path to implement the Berne Convention existed was not material because Section 514 was narrowly tailored to the broader interest of creating enhanced protection for U.S. authors.

Before diving into the decision of the Supreme Court let’s set the table a bit by exploring the Constitutional Clause at issue.  Congressional power to grant both patents and copyrights is derived from Art. I, Sec. 8, Clause 8 of the United States Constitution, the so-called Intellectual Property Clause.  To patent attorneys Art. I, Sec. 8, Clause 8, will forever be known as the Patent Clause.  For attorneys specializing in copyright law this clause is known as the Copyright Clause.  The clause is referred to in this copyright case as the “Copyright Clause.”

The Copyright Clause to the United States Constitution gives Congress the power 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.”  In something of a historical oddity, at the time of the Constitution the Clause mentions “science” relating to copyrights and “useful arts” relating to patents. That was how the terms were used back in the late 1700s.  Notwithstanding the language peculiarity, exactly how is progress promoted by snatching works from the public domain and restoring copyright protection?  A good question, but one that did not receive a thoughtful or logical answer.

According to the Supreme Court, “[t]he text of the Copyright Clause does not exclude application of copyright protection to works in the public domain.”  Said another way, this Supreme Court does not see anything within the Copyright Clause that would prevent Congress from granting copyright protection to works that have previously fallen into the public domain.  This has to be music to the ears of Disney executives!  For many years now the standing joke is that the copyright term is the life of Mickey Mouse plus 75 years.  Every time Mickey Mouse is about to fall into the public domain it seems that Congress just extends the life of copyright protection.  Now Congress will not have to engage in such shenanigans any longer and can simply allow Mickey Mouse to fall into the public domain and then enact legislation that says Mickey Mouse (and presumably all Disney copyrights) enjoy another 75, 100 or maybe 150 years of protection.

I have to wonder whether this case would come out the same if a patent invention were at issue. Would the Supreme Court have allowed Congress to re-patent something that had fallen into the public domain?  The same Constitutional provision apply to both patents and copyrights, and despite the fact that the Supreme Court has routinely interpreted the language differently even they would have to appreciate that if the Clause says works of art can be removed from the public domain then inventions would likewise have to be capable of removal from the public domain, correct?

It is absurd to contemplate the patenting or re-patenting of inventions that have fallen into the public domain, but before today it was absurd to think that the Supreme Court would allow for the re-copyrighting of works that had fallen into the public domain.  Although, careful observers certainly knew this ridiculous ruling had to be possible given the Supreme Court’s decision in Eldred v. Ashcroft, which basically read out of the IP Clause the “limited time” language and found that Congress could grant copyrights of whatever duration they wanted provided they were not perpetual.  So perpetual minus 1 day would suffice I suppose.  Do you see how absurd this area of law has become?

Despite the very real language and limitations of the IP Clause to the United States Constitution the Supreme Court has granted Congress plenary power.  Perhaps they were asleep that morning in Constitutional Law.  Someone really needs to give the Justices a history lesson!  They also likely have an actionable case against whoever taught them Constitutional Law. They should get their money back from their Ivy League Law Schools for failure to teach them that the Constitution does not grant omnipotent genie powers to Members of Congress.  For crying out loud they should hardly be entitled to exercise the limited powers granted in Article I, Section 8!  Congress shouldn’t be allowed to do anything without adult supervision… but I digress.

In my opinion the reason the Copyright Clause argument was so powerful was the fact that §514 fails to “promote the Progress of Science” as contemplated by the initial words of the Copyright Clause. The petitioners argued that because §514 affects only works already created it simply cannot meet the Clause’s objective. In the face of a correct and logically consistent argument like this what did the Supreme Court say?  They decided that the creation of new works is not the sole way Congress may promote “Science.”  In fact, the Supreme Court went on to do what they did throughout the opinion, which was say that Eldred already answered the question, which is of course nonsense.  Of course, even if that were true the fact that the Supreme Court has previously made egregious mistakes shouldn’t be a legitimate rationale to perpetuate those mistakes and make wholly new egregious mistakes.

If you are a creator or inventor you probably did like to read that the Supreme Court said that Congress is empowered to determine whatever intellectual property regimes serve the ends of the Clause.  So I guess that means that Congress gets to both enact intellectual property laws and gets to interpret them and the Constitution, which I had previously thought was the prerogative of the Supreme Court of the United States beginning back with Marbury v. Madison.  My non-Ivy League law education must be lacking because I was SURE that it was the Supreme Court that was supposed to interpret the Constitution and the limited powers granted to Congress under Article I, Section 8 were not plenary power to determine whatever ends justify the means… but I digress.

Creators and inventors were also likely quite pleased to read that “Progress of Science” does not exclusively require there be incentives for creation.  For example, the Supreme Court explained that Congress could determine that progress is promoted inducing the dissemination of existing works is an appropriate means to promote science.  The reason this should be so well received by inventors is because everyone knows that there are a great many reasons innovations are not available on the market.  For example, someone may have patented an item and was just unable to get the project to move forward for one reason or another.  The next person, perhaps a generation later, who wants to patent and move forward decides not to when they learn they cannot obtain a patent.  So under the Supreme Court’s rationale here in Golan v. Holder Congress could determine that progress would be promoted by disseminating the invention and the only way that can be accomplished is to grant exclusive rights to make the dissemination commercial attractive and feasible.  Thus, the logic underpinning the Golan v. Holder decision (and I do say that with my tongue planted firmly in my cheek) must be that inventions that are in the public domain could be re-patented at the discretion of Congress.

Even the once mighty and revered First Amendment was no match to the plenary power granted to Congress by the Constitution to do whatever they please with respect to intellectual property rights.  According to the Supreme Court there is nothing in the historical record, subsequent congressional practice, or Supreme Court jurisprudence that suggests there should be any First Amendment issues associated with snatching works that were once in the public domain and granting them copyright protection.

Unbelievable really.  Exactly which part of “Congress shall make no law… abridging the freedom of speech” is confusing to those Ivy League educated know-it-alls on the Supreme Court?  Do they actually understand copyright law at all?  Do they realize that the petitioners could engage in all kinds of activity freely prior to the restoration of copyrights and then after the restoration they can engage in such activities only if they pay licensing fees to the copyright owner?  The fact that the Supreme Court does not see any viable First Amendment issue would be nearly laughable if it weren’t so depressingly sad.

There is something fundamentally unfair and un-American about changing the rules of law in mid-stream.  I am personally offended that works have been snatched from the public domain.  Anyone with even a basic sense of fairness would have grandfathered in existing uses, which did not happen.  The Supreme Court has once again let us down.


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Join the Discussion

36 comments so far.

  • [Avatar for Roland]
    January 27, 2012 06:53 am

    Thanks Anon for your ‘prod’, and thumbnail reminder of the roles and responsibilities of the (US) legislative and judiciary in all this and by so doing showing how they both failed in this case.

  • [Avatar for Anon]
    January 26, 2012 08:02 pm

    Thank you Roland, I have read Breyer’s dissent.

    I do want to avoid getting caught up in semantics, but differentiating the legislative branch from the judicial branch and saying that the “U.S. Government” created its own problem misses the point that only part of the problem was created at the treaty side (legislative branch). The other part of the problem was just now created by the abdication of responsibility of the judicial branch. That judicial branch is supposed to stop (in rear guard action) the legislative branch when that branch steps too far.

    Telling the legislative branch that it missed the chance to ameliorate a concern is not enough.

    Congress simply is not allowed to overstep the constitution – no matter if a treaty we have signed demands us to do so or not. We cannot step in tune with the rest of the world if our constitution says otherwise. Period. Chance of amelioration missed or not.

    In this sense, Breyer’s point does not matter. Congress did miss. Congress did overstep. The Supreme Court also missed.

  • [Avatar for Roland]
    January 26, 2012 05:54 pm


    Whilst I appreciate your concerns (sovereignty is major political issue in the UK, particularly with respect to the EU’s aspirations for greater integration, the ramifications of the extradition treaty with the USA, and not forgetting Scotland!), I do strongly recommend you read Breyer’s dissent in the decision document.

    The US Government (as far as we know) didn’t acquiesce to the treaty terms, it voluntarily didn’t select the options available in the treaty that would of totally avoided the Golan v Holder case!


  • [Avatar for Anon]
    January 26, 2012 10:38 am


    I view this as much more than semantics, as the Constitution is we the people is the US Government.

    You cannot damage any one without damaging the others. To me, sovereignty is very much at issue as we continue to move down a path of a one world system for some global benefit that in the end will sacrifice who we are today (and who we have been since the United States was formed).

    This may be an inevitable thing. This may even be a good thing. But it is a thing that we should be more aware of, and it should be something that we approach through the channels the constitution provides – and not through acquiesence to treaty terms.

  • [Avatar for Roland]
    January 26, 2012 09:58 am


    I agree the logic will have to eventually come home to roost. However, I think a more appropriate wording of your final question is:

    “How much damage to our Constitution will we allow?”

    Remember, this problem is one the US Government brought upon itself…

  • [Avatar for Anon]
    January 26, 2012 09:06 am

    By upholding the law they have handed the Constitutional problem back to the Government

    The problem as I see this is that the Court, in doing as you have suggested, has shirked their duty. It is not up to the Congress to determine, on reivew, the constitutionality of the laws they have passed.

    whilst also leaving the door open to the Government to renegotiate

    The problem as I see this is that by allowing the Congress to proceed, there is noo impetus to do as you suggest. Pointing out that a door exists is a poor substitute for forcing someone through that door.

    In fact, by not forcing that someone through that door the negative implication is enforced that that someone does not have to go through that door. An “optionality” is created that by right and reason should not exist.

    Eventually, the logic will have to come home to roost. But how long until then? How much damage to our sovereignty will we allow?

  • [Avatar for Roland]
    January 26, 2012 06:49 am

    Dear Terry,

    Although, I was being a little provocative in my double standards statement, I agree that before Golan v Holder, it would seem that the specific law(s) created when the US Government decided to fulfil it’s Berne Convention obligations, was clear concerning the status of these PD works; however, these law(s) conflict with the Constitution. It would seem that the Golan v Holder decision could have either: 1) Upheld the Constitution and leave the Government with the problem of renegotiating it’s Berne signing terms so that it’s actions accord with its obligations. 2) Upheld the law(s) arising from the Government’s signing of Berne and leave the Government with the Constitutional problem.

    In my opinion, if the Court had upheld the Constitution then it would of created a situation where the US could of been accused of double standards. By upholding the law they have handed the Constitutional problem back to the Government (who created it in the first place), whilst also leaving the door open to the Government to renegotiate it’s Berne obligations (and perhaps at the same time update Berne to better handle ‘orphaned works’).

    Putting all these case specific’s to one-side, it is obvious, as Gene noted, this case potentially sets a rather disturbing precedence for IP and raises the spectre of “patenting or re-patenting of inventions that have fallen into the public domain”. I personally think this spectre is real, particularly given the energy that some companies (eg. Lego, Apple, Microsoft etc.) are putting into protecting their ‘IP’ by any available means (I use ‘IP’ to include the “they stole our idea” style of claims).


  • [Avatar for Terry Cole]
    Terry Cole
    January 25, 2012 06:44 pm

    Dear Roland,

    You did better than I with respect to reading the decision. I only looked closely at the majority holding, thinking the dissent would be a rehash of the amicus briefs. I should have known that Breyer would write something interesting.

    As the anonymous post 27 observes, an international treaty is not supposed to supersede the Constitution. Of course the majority simply says their holding does nothing of the sort, which beggars belief. Breyer agrees with Quinn in that, and points out that stripping expired works of their PD status was not just dodgy but unnecessary; “… the respective countries shall determine, each in so far as it is concerned, the conditions of application …”

    On the same page as his ‘problem of own making’ slap to Congress Breyer’s fourth point puts the issue starkly: “… the majority argues that this statutory provision is necessary to fulfill our Berne Convention obligations”. But Article 18(3) of the Berne Convention means the US could have joined the treaty without compromising the constitution.

    For that reason I can’t agree that the US had a double standard which had to be eliminated to preserve IPR recognition and that this justified Golan v Holder. There were other options besides setting such a precedent (that international treaty can override Constitutional rights).

    Those pesky foreign rightsholders won’t care. They seem to change their constitutions every day of the week and twice on Sundays. Except of course for the British who don’t believe in a written Constitution at all, and certainly not one which can’t be overturned by a sovereign parliament (assuming royal assent). They’d look with approval on Souter’s rejection of a plain-text interpretation (in his Harvard 359th. commencement remarks). Even they would agree though that judicial interpretation should have limits, and it’s clear SCOTUS exceeded them, except the text of the Constitution makes SCOTUS the sole judge of that! If King George was bad, this is worse. I can almost hear the shade of George III: “Glad you’ve seen the light, chaps!).

    In the absence of a realistic constitutional convention or amendment option, Souter has a point, but my own feeling would be that you can accommodate the foreign rights without letting Congress ignore constitutional limits. Not only were there less offensive options, Breyer points out that on accession to TRIPS the US could have negotiated side-conventions which eliminated the problem altogether (“Article 18 explicitly authorizes countries to negotiate exceptions to the Article’s retroactivity principle.”)

    If you’re going to have a Constitution at all, you should really use the mechanisms in place for changing it.

  • [Avatar for Keith Relkin]
    Keith Relkin
    January 25, 2012 06:17 pm

    It seems evident that Congress has, at various times, had and exercised the power to restore PD works to Copyright protection, for various reasons.

    Roland’s point, citing the decision itself: <> is a good one, and is the only discussion that quotes the decision, directly (thank you, Roland).

    Obviously the “for a time” wording is going to be open to someone’s interpretation, and we just hope that the honor, goodwill and trustworthiness of those to whom this is entrusted is what we hope it might be. If not, any future Congressional action is subject to Supreme Court oversight, as well, so the idea that Congress will run wild seems unlikely and, as this case shows, those profiting from PD works seem to have as much incentive and ability to mount a legal case as those protecting their copyrights.

    I am not in doubt about Justice Ginsburg’s character. Or the purport of the decision. And it is unfortunate that those who depended for commerce on using PD works will now have to find other avenues. It didn’t rightfully belong to them, in the first place.

    I don’t like the idea of retroactively changing the law to favor one party or another (including even the venerable Mickey Mouse). But I can see the logic and merit in maintaining parity in international conventions and treaties.

  • [Avatar for Anon]
    January 25, 2012 08:36 am

    But isn’t it part of the issue this “even putting to one side the US constitutional aspects”?

    What we may want in an international brotherhood of nations cannot supersede our constitution, no matter how “right” and “just” we feel it to be.

    If the constitution needs to be changed to allow any such international concerns to be met, then the methods of constituional change need to be followed – and mere foreign treaty is most definitely not one of those methods.

  • [Avatar for Roland]
    January 25, 2012 07:27 am

    Dear Terry,

    Thanks for the further information about China, however my point wasn’t specifically about China but used China as a relevant example to place the case in an international context.

    From my reading, I think that Golan v Holder is fundamentally about resolving “a dilemma of the {US} Government’s own making.” [ page 67].

    It is this context I am referring to with respect to China; namely at some point in the future (we can hope) that China will also enforce it’s obligations to the international community. At such point China will also have to address the legacy arising from the lag between signing up and enforcement. As members of the international community who would like to see China respect our IPR, the question is how would we want China to treat our IPR which is currently in the Chinese public domain? It is this answer we should use to determine the farness or otherwise of the Supreme Court’s decision.

    Whilst I appreciate that the legal argument covered significantly more ground, to the international community, what the plaintiffs were effectively asking for was legalised piracy of (a particular class of) foreign works. A situation (ie. double standards) the US cannot afford if it really wants to be a respected member of the international community and to get other countries to respect it’s IPR.

    “Moral: be careful what you wish for.”
    I agree as, even putting to one side the US constitutional aspects, many of the arguments put in this case illustrate, the court’s decision (for or against) had significant ramifications.

    Regards R

  • [Avatar for Terry Cole]
    Terry Cole
    January 24, 2012 06:39 pm

    Dear Roland,

    You raise an important point about China, which is currently the workshop of the world and looks likely to remain that so long as it can efficiently mobilize its (100 million plus) migrant workers.

    Correct me if I’m wrong, but your thinking is that the Supreme Court ruling in Golan v Holder might be justified if the Chinese could be persuaded to take action against the current reign of piracy – in particular, by joining up to the relevant treaties and enforcing the rules.

    China has been a member of the WTO for over a decade, the Berne convention (and UCC) for two, and WIPO for more than three. One might think it had already ‘joined up’. It’s even signed up to the PCT. Really, then, it’s a matter of enforcement.

    But there’s a common and I think mistaken notion that the enforcement would be by Western IP holders against Eastern IP consumers. To date there are good reasons for such a prejudice. If you look at the WTO’s page on ‘Dispute cases involving China’ at , I count eight complaints by China against others, versus twenty-three by others against China; and that is before counting the seventy-odd complaints with China cited as a third-party.

    But what is the WTO to do in case of repeated flouting of the rules? You can’t expel them, they’re too important. The United States found itself in that happy position a few years ago when the WTO cited it for violation of GATS, the General Agreement on Trade in Services (on-line betting conducted offshore had been banned).

    The most the WTO could do was allow the aggrieved plaintiff (Antigua) to violate WIPO treaties to the value of $21 million, a trivial sum compared to the compensation sought ($3 billion, I think). That discrepancy prompted a unique dissent from one of three members of the arbitration board. Like the exemption granted by the administrators of the Berne Convention to the US inability to observe ‘moral’ rights of authorship, this has been attributed to US pressure, but ultimately just how it happened doesn’t matter.

    Besides, the pattern of Chinese violation of Western patents has not always been true – back in 2001 for example a Chinese company sued American and Japanese consumers for violating a (Chinese) pollution control patent. As Indian and Chinese industry grows in size and sophistication to dominate the world, we may expect the balance of disputes to reverse: there will be crippling complaints by India and (especially) China against Western nations.

    Moral: be careful what you wish for.

    Regards, TC

  • [Avatar for Terry Cole]
    Terry Cole
    January 24, 2012 05:37 pm

    Dear Anon:

    No. I never mentioned SOPA in the phrase you complain of. That was you.

    I would not be ashamed of it even had I mentioned SOPA. It was and remains clear to me, and doubtless to others, that the web blackouts from Wikipedia et al. set a precedent which will be echoed in future against not only the Golan decision. Furthermore, I would predict similar strikes against ACTA and similar curbs on the internet.

    We shall see. Even you. And Dogma, however blind. At least the ‘lunacy of your babbling’ or the viel of whatever theroroy either of us might be working from academic or otherwise, will be tested by time.

  • [Avatar for Blind Dogma]
    Blind Dogma
    January 23, 2012 05:09 pm

    At no time did I lump together Golan v Holder with SOPA, PIPA, et al. That was an inference drawn by yourself

    Comment 13: On the other hand, even so quick a stop as Wikipedia helps. Last time I tried, the site was offline. As the ripples from Golan v Holder touch more of the Public Domain, we will see more of that.

    Comment 16 (after having it pointed out): Yes, I know. Also the PIPA and to some extent OPEN bills.

    Sorry Terry, you are clueless as to what you are saying. But please make it a point to blame someone else for lumping together Golan v Holder with SOPA, PIPA, et al. It was so clearly some inference drawn by others.

    Recommendation: sit down and right out your thoughts. Compose what you want to say and review what you have actually said. Avoid using fancy sounding terms of art that you don’t understand. Speak plainly. And for the love of God, if soomeone corrects you, listen and see if you did need that correction.

  • [Avatar for Blind Dogma]
    Blind Dogma
    January 23, 2012 08:36 am


    Stop trying to be nice – Terry is simply dead wrong in his application of law and his “being a student” should involve the back of a hand when, as now, it is appropriate.


    You claim that readers don’t know of your achievements (or know of any posters’ achievements). While this is a true statement, this hurts you (and helps me). Since readers don’t know what else is out there, we are left to go on what is actually posted here.

    You post gobbledygook when it comes to legal thinking.

    Your getting upset when this is pointed out only reinforces that you have no clue as to what you are talking about.

    There is often a criticism leveled at lawyers under the mistaken notion that such corrections are a cry that “only lawyers should be talking about these matters.” While this may not be your cry, the answer to both your cry and the general Arm-Chair, Monday-morning, I slept at a Holiday Inn last night “experts” is that you have to at least realize your limitations.

    You, appearantly, do not.

    Any effort, such as by Anon, to educate you is doomed to failure because you are not prepared to understand that what you are preaching is fundamentally flawed. It is not even like you buying an English-German dictionary and thinking that is enough for you to not only travel to Germany, but to lecture the Germans in their language about their language. It is like you not understanding what is a noun and what is a verb, like you thinking that pronunciation alone is good enough without understanding context or syntax.

    Perhaps if you showed an inclination (the royal you), I might not be so severe – you should notice that I am quite congenial to those who show appreciation of the legal world (and its non-applicability of merely being a good-night’s sleep away from mastery – which often is merely a thin viel for preaching about how great it would be under some other academic therory) and so, given the lunacy of your babbling, at least I can have a little fun at your expense. You might even realize that ad hominem, when artfully wielded, has its place in an exchange of unequals. That sting you feel just might be the sting of truth. Just might.

  • [Avatar for Roland]
    January 23, 2012 07:54 am

    Whilst most of this article is about the legacy left over from the USA’s rather late joining of the Berne Convention and tarry implementation of the first 21 articles, it does raise several other related issues both around the arbitary extension of copyright/patent protection.

    Whilst we can (currently) laugh about Mickey Mouse, we shouldn’t forget that Disney isn’t the only party trying to protect commercial assets that are either already in or will soon become public domain; a current example being Lego and their actions predominently against Mega Blocks (Lego’s patents have expired).

    I also would like to pick up on the point raised by MM (comment #2) and Gene’s response (comment #3) and change the context to China! Here we have individuals and business’es trading under their current IPR rules; however once China joins up and enforces international conventions, the question is what consideration should be given to these existing businesses? I think the answer will inform us about whether the Supreme Court’s decision was a reasonable compromise or out-of-order.


  • [Avatar for Anon]
    January 23, 2012 06:55 am

    Sorry Terry, your message is getting lost in your message.

  • [Avatar for Terry Cole]
    Terry Cole
    January 23, 2012 02:54 am

    Please ignore the last two lines of the last post, which appear to be clipboard rubbish.

  • [Avatar for Terry Cole]
    Terry Cole
    January 23, 2012 02:49 am

    At no time did I lump together Golan v Holder with SOPA, PIPA, et al. That was an inference drawn by yourself. All I said was that to the effect that we may expect further strikes along the lines of website blackouts as the consequences of Golan widen.

    I know nothing of your own legal or technical achievements, and you know very little of mine. I know nothing of Blind Dogma, either. And I have no idea what a ‘slept-at-a-Holiday-Inn’ type of legal argument might be.

    On the other hand it is absolutely true that I am only a student, if an advanced one, of law. You are both welcome to your opinion of my opinion.

    On the gripping hand, as to my understanding of ‘good law’ or the lack of it, I take comfort in knowing that I merely repeated, in a trivial parenthetic remark, something said to me years earlier by a legal academic of vastly more learning than myself. And I have at least the academic record of one who understands both the technical and the legal world.

    To return to the point in question, you are I think confusing ‘good law’ as precedent, with ‘good law’ in the sense of good moral effect. Dred Scott is ‘good law’ in that it has precedential value. My examples included Justice Scalia who held it up as an example of a ‘bad law’ in the moral sense. But it was still ‘good law’ in the precedential sense, or he would not have bothered.

    The thrust of his polemic was to discredit Roe v Wade, also a “substantive due process” case, by likening it with a ‘bad law’ in the moral sense. For the purpose of critiquing substantive due process, both cases were ‘good law’ in the sense of precedent. Had they not been his argument would have been vitiated.

    It was was that the element under discussion (the pioneering use of substantive due process) was decidedly not a bad law in the sense of being overruled, at least that

  • [Avatar for Anon]
    January 22, 2012 11:48 pm


    Your use of terms (especially as terms of art) is too loose and often contradictory to what the terms actually mean (for example, a law is not held as good law in the precedential sense when it is the opposite of good law. Your own examples indicate treatment of Dred Scott as an example of bad law, not good law.

    I think I understand what you are trying to say, that the effects of the decision are still felt today, but that is decidedly not what you said in a legal sense. If you do not understand the term of art, you should refrain from using it, much like I would dare not use Mandarin at my current level of ineptitude (calling my mother-in-law a horse would not be well for me).

    To paraphrase another friend who used to post quite often on this blog, there are two worlds involved here, a legal one and a technical one. You need one foot in each world to dance well (and having one foot only in the technical world is a cause for inadvertent trouble). Your lumping together Golan and the current legislative efforts is also unfortunate, as the two are indeed separate and the actions towards one should not be so carelessly assumed to be attributable to the other.

    I suspect that is why Blind Dogma treated you with the “ad hominem and common abuse” stuff. I know he means well (well, at least if you get to know him), but he can have a short fuse, and he has a very short fuse for arm-chair, slept-at-a-Holiday-Inn type legal commentators.

  • [Avatar for Terry Cole]
    Terry Cole
    January 22, 2012 10:33 pm

    Yes, I know. Also the PIPA and to some extent OPEN bills. But we will nonetheless see more such manoeuvres as the implications of Golan v Holder rattle through the web.

    Regards, TC

  • [Avatar for Anon]
    January 22, 2012 09:55 pm

    A quick note (sorry for not provinding more feedbacl at this time, I want to read your answers with some care), but the Wikipedia stoppage was not in relation to the Golan case at all.

    It was due to the H.R. 3261 internet bill in process.

  • [Avatar for Terry Cole]
    Terry Cole
    January 22, 2012 08:48 pm

    Okay, here’s a couple of arguments before the Supremes. As usual, they come from material before the court in a writ of Certiorari.

    One was the high-visibility ‘Courthouse Ten Commandments’ case, where it had been ruled that the display of the Ten Commandments violated the constitutional prohibition against establishment of religion. (McCreary County (Kentucky) v ACLU (Kentucky)). Like Golan v Holder, this was a first amendment case.

    In the table of authorities cited in an amicus brief from “Moral Law, Inc.” (a Christian pressure group) we find none other than: “Dred Scott v. Sandford, 60 U.S. 393 (1856)”.

    Of course, people prefer or deprecate ‘interpretation’ of the constitutional text according to transient taste and not consistently at all. In brief’s text, the amici argue the dissenters’ position: that the majority had departed from a strict adherence to the text of the constitution, and; “One dissenter in the infamous case of Dred Scott chastised the errant majority for not only rejecting the fundamental worth of a person, but the fundamental principles of constitutional interpretation.”

    An even better example comes from another corner of the political spectrum. In “Parker, Palmer, St Lawrence, Ambeau, and Lyon v District of Columbia” – the DC handgun case – there was a request for Certiorari, this time involving gun control. In that text, Dred Scott is cited, as usual as a horrible example, but cited nonetheless:

    “This Court in 1856 made a mistake that took a civil war and passage of the Fourteenth Amendment to rectify. That mistake was to deny standing to a man seeking justice in a federal court for rights he knew he had under the United States Constitution. The [doctrine at issue] makes a corollary mistake and a mockery of justice. The rule creates a non-entity. It postulates a class of “the people” who have a “right to keep and bear arms,” but who nevertheless have no standing to invoke that right.”

    In such examples the petitioners think the Supremes might make a mistake, and they know that after the decision it will be the law of the land, wrong or not; so they invoke Dred Scott as an awful vision of what might happen next. And in the case of the gun control people, they are absolutely not kidding. Nor are the IP pirates.

    The importance of those briefs is they exemplify how the case is still regarded as legal authority – even the dissents, which is not unusual either.

    Regards, TC

  • [Avatar for Terry Cole]
    Terry Cole
    January 22, 2012 07:24 pm

    Dear Anon,

    It did cross my mind that Blind Dogma might intend something other than PhD, given his capitalization of the H. From the two sentences he ‘called out’, though, I was baffled as to what else it might be. Thank you for the clarification.

    It’s hard to rebut the ad hominem and common abuse stuff, and I’m not sure I should try. Cardinal Newman compared such tactics in a war of words to ‘poisoning the wells’.

    Your own argument is making me think. It’s been years since I had access to the material, but I’d have to start with the observation that nearly every Judge seems to have mentioned Dred Scott – it’s like some sort of supreme rite of passage. It might be mentioned as an example of how bad law – bad judgements – can issue, but they still wind up using it because it asserted principles (like the right of SCOTUS to strike statutes as unconstitutional) far beyond the three main holdings.

    While it’s always good to focus on recent cases, they depend in their turn on earlier cases, and so forth. A legal precedent doesn’t have an expiry date like some sort of dairy food. It’s a link in a long chain. The ancient Statute of Monopolies is still good law according to a recent local decision in terms of defining what is patentable, for example.

    You were asking for some examples – I don’t have access to a law library any more – my University is still recovering from earthquakes, no kidding, and I can’t get affordable accommodation. On the other hand, even so quick a stop as Wikipedia helps. Last time I tried, the site was offline. As the ripples from Golan v Holder touch more of the Public Domain, we will see more of that.

    Anyway, in the article for Substantive Due Process we find: “Critics of substantive due process claim that the doctrine began, at the federal level, with the infamous 1857 slavery case of Dred Scott v. Sandford [sic]. Advocates of substantive due process acknowledge that the doctrine was employed in Dred Scott, but claim that it was employed incorrectly.”

    In fact, it turns out that “Justice Antonin Scalia made the comparison between Planned Parenthood v. Casey (1992) and Dred Scott in an effort to see Roe v. Wade overturned”.

    To summarize, modern cases referencing Dred Scott v Sandford are easy to find for yourselves. People might despise the decision, but they are still obliged to deal with it. Even now, legal adversaries use that ancient case as a horrible example to argue one side or another of controversies like procedural vs. substantive due process; and the power of such arguments depends on the status as ‘good law’ of bad decisions.

    Golan v Holder will, I think, become a tainted precedent on that scale, which was the point I was trying to make.

    Regards, TC

  • [Avatar for Anon]
    January 22, 2012 10:12 am


    Knowing Blind Dogma, PHD is not an academic designation. (P)ile it (H)igh and (D)eep is a reference to a callout that you are just making things up.

    I would like to know what part of the Dred Scott decision is still good law – what part is still used as precedent for other decisions.

    Do you have any examples?

    Since a Court decision may have several elements, you might be correct in that somne element of the decision is still good law.

    However;; in the context of what the name “Dred Scott” conjures up, I think that you would be completely wrong. To assert, then, that the decision is still good law amounts to an alarmist type of smoke screen, as what may be considered still good law from that case would be indistiungishable from far too many far more recent cases, and you are trying to make a point from the most immediate image of the Dred Scott case that is the part that is not good law.

  • [Avatar for Terry Cole]
    Terry Cole
    January 21, 2012 05:13 pm

    Dear Blind Dogma,

    Sorry, no PhD, just OBE ret. (Ordinary Bloody Engineer, retired). Highest qualification is an honours degree in Romance languages. Nothing else higher than trade diploma or Bachelor’s degree (but rather too many of those).

    Regards, TC

  • [Avatar for Blind Dogma]
    Blind Dogma
    January 20, 2012 11:29 pm

    in the sense that it has not been overturned by a competent court.

    because it’s a term of art

    Terry, I smell some serious PHD.

  • [Avatar for Terry Cole]
    Terry Cole
    January 20, 2012 07:27 pm

    Dear Anon,
    You ask “Why would you think that a competent court is the only way to overturn a law?”.

    It’s a fair question, but what I said was that Dred Scott v Sanford was still “Good Law”, which I suspect is confusing people because it’s a term of art. It means that overturned or not, the holding is still used as precedent for other decisions. My old lecturer didn’t belabour the point, but a quick look at the Founder’s Constitution picks up several.

    Besides, can I point out that SCOTUS can declare a subsequent statute or reversal unconstitutional? Congress could reverse a holding in ‘Dred Scott’ by amendment but as the later segregation decisions showed, SCOTUS is free to interpret the amendment in a way which completely defeats the amendment’s purpose. That I think is actually Quinn’s point in the above article: “Simply stated, treaties and international law cannot trump the Constitution.”

    Sadly, Quinn’s assertion does not appear to be true. the Constitution unambiguously states that SCOTUS gets to decide what can or can’t judge the constitution. SCOTUS is the competent court, and no-one else gets to make the decision.

    Regards, TC

  • [Avatar for Sean Flaim]
    Sean Flaim
    January 20, 2012 02:05 pm

    Unfortunately, this just goes to show you that expecting reasoned decisions on intellectual property policy to come from the Supreme Court ignores the fact that the court is ill-equipped to be making these types of economic policy decisions vis-a-vis Congress in the first place. And, Congress is unlikely to make reasoned policy decisions in this area due to the concentrated power of the content industries over the dispersed citizenry that make up the “public” in “public domain.”

  • [Avatar for Anon]
    January 20, 2012 09:07 am


    Why would you think that a competent court is the only way to overturn a law?

  • [Avatar for Terry Cole]
    Terry Cole
    January 19, 2012 11:03 pm

    Hm. If I’m guilty of hyperbole, I apologize. Time will tell.

    It’s not that I’m in favour of Dred Scott v Sanford being good law, it’s just that I honestly thought that to be the case. As far as I’m aware, Dred Scott, despite being “superseded” by constitutional amendment, is still counted as ‘good law’ in the sense that it has not been overturned by a competent court.

    Specifically, the last time I had to deal with this was after a lecture in law school (around 2003) where the professor observed that the Dred Scott decision was still good law because it had never been reversed by the Supreme Court, which is the ultimate arbiter of such questions.

    I’ve never had access to Westlaw but am sure you quote accurately. Back in the day, though, I had student access to Lexis-Nexis which had no such “superseded” note. If I remember rightly we were taught that part of the civil war amendments were issued to overcome precisely the problem that under the antebellum constitution the SCOTUS legal reasoning was in fact correct.

    This did not, of course, make it any the less harmful, as the founding fathers might have foreseen had they listened better to Jefferson (“I fear for my country when I reflect that God is Just”, or words to that effect). But it remains true that the Constitution, as it then stood, was so written as to deny non-whites, and in particular those of African ancestry, citizenship of the US.

    This was done carefully avoiding any use of the word “slave” by enumerating the rights of those who were “free” and allowing the individual states to determine who was free, and who not. A slave, like a bondservant, was a person ‘held to service or labor’ under the laws of a particular state (not necessarily the one where he or she lived!). Because freedom depended on state law it needed not only a constitutional amendment to remove slavery, but that amendment had to be read into the municipal law of every state.

    And this didn’t happen till after the Dred Scott decision. That’s why the decision has never been overturned. As the law then stood, it is quite possible to argue the decision was correct. That of course didn’t stop large numbers of people from disagreeing with it, and eventually going to war over it. But in the formal system of US Law, the SCOTUS decision was and remains the last word.

  • [Avatar for Anon]
    January 19, 2012 08:44 pm


    Sorry to deflate your hyperbole, Dred Scott is not still good law per the Westlaw keycite:

    Superseded by Constitutional Amendment (1868)

  • [Avatar for Terry Cole]
    Terry Cole
    January 19, 2012 07:02 pm

    Thank you for drawing to our attention the likely extension to patent law. Truly, it’s only a matter of time before some mighty corporation persuades Congress to grant an indefinite general farm on some method of manufacture.

    More generally, your analysis is fair and on point, despite the comments such as this: “the dissent does not pause to consider when and why the material came to be lodged in that domain”.

    I would be a lot more impressed with that argument if it were not a constitutional question, for which how a work’s copyright limit is reached is irrelevant. You still have US citizens who relied on the Public Domain and who now must pay fees for past use. This is only the latest in a long string of intellectual property abuses.

    I would say that this is an intolerable situation, except that it is clearly not only tolerable but enforced. The recent case of MegaUpload shows how even when the mighty media corporations are caught violating someone else’s intellectual property, they can persuade the executive branch to short-circuit the lawsuit by arresting the plaintiffs on other charges.

    The sins of Congress and the Supreme Court in this matter are so great, one is tempted to draw parallels with the Volstead Act and the Dred Scott decision (still good law, by the way). But in those cases the mighty reaction of the majority of citizens prevailed.

    I see no indication that such a reaction will influence Congress this time. Congress is not responsive to voter opinion; such opinion is so dependent on media campaigning as to be easily bought. What the end of this will be no-one knows. There is no realistic prospect of a constitutional convention to cure the problem, and Congress is so in the pocket of a nonpartisan elite that you won’t have an amendment from them to overrule SCOTUS either. You might, however, have an interesting kind of shooting war, with new weapons.

    Best guess: both copyrights and patents will underpin the existence of a new ruling class, in much the same way as control of land was the basis for European aristocracy. When laws becomes that burdensome, they will be undermined by corruption and the other mechanisms the world has in place for grass-roots revulsion at gross misrule. It will be like the enforcement of law in an Italy dominated by the Mafia or the N’drangheta. The law will be run its course, but it will not be obeyed.

    Of course that kind of safety valve is much less efficient than a society accustomed to the rule of law. I expect the competitiveness of the US to enter a steep decline. But all nations come to this, in the end. Think of it as evolution in action.

  • [Avatar for Gene Quinn]
    Gene Quinn
    January 19, 2012 05:10 pm


    You ask: “Is there a reason in your mind why US and non-US copyright holders should NOT be treated equally in under US law?”

    I am comfortable with US and non-US copyright holders having similar rights. We want US creators and inventors to be afforded rights overseas and you cannot expect that to happen if foreigners are not given rights commensurate with US right holders.

    That being said, there is something fundamentally inappropriate about taking from the public domain and granting copyright protection. In my mind there is no justification for doing that. Those who played by the rules here and made determinations based on what was in the public domain have had the rug pulled out from under them. I see no reason here or elsewhere in the law to allow those who follow settled law not to have their expectations met. Throughout my writings I have been 100% consistent (I believe) in always opposing retroactive changes in law that impact those who made decisions and detrimentally relied upon settled law. That is one of the reasons I railed against the Supreme Court for ignoring Bankruptcy law in the auto bailout, for example.

    That is why in the article I explained that treaties and international agreements cannot take precedent over the Constitution. The Supreme Court’s Constitutional analysis is wrong and ignores the very fabric of intellectual property; why we have intellectual property rights in the first place. It will lead to ridiculous extension of power in Congress, or it will be treated as a stand alone case where the Supreme Court did what they thought best for an America that wanted to fit within the international community.


  • [Avatar for MM]
    January 19, 2012 04:38 pm


    The US can be very quick to assert its various IP laws to material copied outside of the US, in order to protect the rights of US copyright holders. From what I understand, the judgement simply tries to equalize the rights of the US and non-US copyright holders in US law. Is there a reason in your mind why US and non-US copyright holders should NOT be treated equally in under US law?

    If so, I would be very interested to hear this reason. Secondly, if such a reason exists, should it apply to other countries, i.e. should Chinese copyright holders enjoy the same advantages in China compared to US copyright holders?

    I also agree with EG’s (and yours) comments about some of the absurdities of copyright law, and not just in the US. However making such absurdities also depend on the nationality of the copyright holder does not help matters.

  • [Avatar for EG]
    January 19, 2012 02:47 pm


    I would be careful in characterizing Ginsburg’s decision as being “dishonest.” I think there’s too much is being made of §514 being in conflict with the Copyright Clause.

    Let’s also look at the “reality” of what actually §514 covers, which is foreign works published abroad before the U.S.’ acceptance of the Berne Convention in 1989. From my reading of Ginsburg’s majority opinion, §514 is essentially a remedial provision to restore what’s left of the copyright term for such a foreign work that fell prematurely into the U.S. public domain because of, for example, failure to observe U.S. notice formalities (such U.S. notice formalities are frowned upon by Berne). In fact, there may have been no U.S. copyright term at all for that foreign work. 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 term of 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.

    I understand the First Amendment concern, but you have that problem now as, at the point the work is created, copyright exists, whether or not the work says it is copyrighted. Frankly, I’m much for offended by the Sony Bono Law decision (Eldred v. Ashcroft) which seems to all Congress to extend existing copyright, no matter how long that might, as long as the copyright term isn’t perpetual.