[Foundation-l] Amicus Brief Filed in Golan v. Holder: Fighting for the Public Domain

Fri Jun 24 17:03:52 UTC 2011

Most of those 3 million are not directly affected by the URAA, otherwise 
we would not be hosting them. The point of our brief is the following:
1. Due to the URAA, there are hundreds of thousands of files that we 
cannot host, but would otherwise meet our policy requirements - i.e. 
files that are public domain in the source country and were previously 
public domain in the U.S.
2. The URAA makes it much more difficult for us to determine the public 
domain status of foreign works.
3. The URAA creates a massive number of new orphan works.
3. By setting the precedent that public domain works can be 
recopyrighted, it puts a chilling effect on reuse.
4. By setting the precedent that public domain works can be 
recopyrighted, it is likely that more works will be recopyrighted in the 
future, and the public will be further robbed of our shared culture (and 
legal property).

Ryan Kaldari

On 6/24/11 2:07 AM, teun spaans wrote:
> Thank you, Ryan.
>
> I did a quick check. The count for that Template:PD-Layout is indeed some
> 3.3 million.
> I went to commons, and looked up the Template:PD-Layout. I think the correct
> link is: http://commons.wikimedia.org/wiki/Template:PD-Layout.
> Then I looked up the lionk: What links here. The first one was:
> http://commons.wikimedia.org/wiki/File:The_Death_of_Hyacinthos.gif
> According to the description, the author is Artist Jean
> Broc<http://commons.wikimedia.org/wiki/Jean_Broc>(1771–1850) [image:
> Link back to Creator infobox
> template]<http://commons.wikimedia.org/wiki/Creator:Jean_Broc>
> With a death of the author in 1850, that seems to me to be outside the scope
> of this law. Though this is just one example, it indicates that the count
> may be too generous.
>
> Just to have an indication of the size, i went through the first 5 of the
> links:
> File:Chinese_opera051.jpg : 19th century drawing of Chinese opera, public
> domain from en wiki
> File:Alicebeggar.png : Description *English:* "Alice Pleasance
> Liddell<http://en.wikipedia.org/wiki/Alice_Liddell>as a beggar girl."
> This was first published in Carroll's biography by his
> nephew: Collingwood, Stuart Dodgson (1898).
> File:LocatieRotterdam.png : This work has been released into the *public
> domain<http://en.wikipedia.org/wiki/en:public_domain>* by its author,
> *Mtcv<http://commons.wikimedia.org/wiki/User:Mtcv>
> *. This applies worldwide.
> File:AliceSilvy.png: Date 1861
> None of these 5 seem to qualify as fitting into the gap of death of the
> author between 50 and 70 years ago, though for File:Alicebeggar.png and
> File:AliceSilvy.png: this is not 100% sure - if the artist was 20 years old
> in 1861, and became 91, he died in 1942, just 69 years ago.
> It looks to me that the template PD-Layout is too general. And a count of
> PD-old gives just 17K.
>
> kind regards,
> Teun Spaans
>
>
> On Fri, Jun 24, 2011 at 12:02 AM, Ryan Kaldari<rkaldari at wikimedia.org>wrote:
>
>> It's based on the template transclusion count here:
>>
>> http://toolserver.org/~jarry/templatecount/index.php?lang=commons&name=Template%3APD-Layout#bottom<http://toolserver.org/%7Ejarry/templatecount/index.php?lang=commons&name=Template%3APD-Layout#bottom>
>>
>> Ryan Kaldari
>>
>> On 6/23/11 1:01 PM, teun spaans wrote:
>>> The number of 3 million surpises me.  Common hosts about 10 million
>> items.
>>> Are you certain this amount is approximately correct?
>>>
>>>
>>>
>>> On Wed, Jun 22, 2011 at 8:40 PM, Geoff Brigham<gbrigham at wikimedia.org
>>> wrote:
>>>
>>>> Yesterday, the Electronic Frontier Foundation (EFF) filed an amicus
>>>> ("friends of the court") brief in Golan v. Holder, a case of great
>>>> importance before the Supreme Court that will affect our understanding
>> of
>>>> the public domain for years to come.  See
>>>> http://en.wikipedia.org/wiki/Golan_v._Holder.  The EFF is representing
>> the
>>>> Wikimedia Foundation in addition to the American Association of
>> Libraries,
>>>> the Association of College and Research Libraries, the Association of
>>>> Research Libraries, the University of Michigan Dean of Libraries, and
>> the
>>>> Internet Archive.
>>>>
>>>> This case raises critical issues as to whether Congress may withdraw
>> works
>>>> from the public domain and throw them back under a copyright regime.  In
>>>> 1994, in response to the U.S. joining of the Berne Convention, Congress
>>>> granted copyright protection to a large body of foreign works that the
>>>> Copyright Act had previously placed in the public domain.  Affected
>>>> cultural
>>>> goods probably number in the millions, including, for example,
>> Metropolis
>>>> (1927), The Third Man (1949), Prokofiev's Peter in the Wolf, music by
>>>> Stravinsky, paintings by Picasso, drawings by M.C. Escher, films by
>>>> Fellini,
>>>> Hitchcock, and Renoir, and writings by George Orwell, Virginia Woolf,
>> and
>>>> J.R.R. Tolkien.
>>>>
>>>> The petitioners are orchestra conductors, educators, performers, film
>>>> archivists, and motion picture distributors who depend upon the public
>>>> domain for their livelihood.  They filed suit in 2001, pointing out that
>>>> Congress exceeded its power under the Copyright Clause and the First
>>>> Amendment of the U.S. Constitution.  They eventually won at the district
>>>> court level, but that decision was overturned on appeal in the Tenth
>>>> Circuit.   The U.S. Supreme Court - which rarely grants review - did so
>>>> here.
>>>>
>>>> Petitioners filed their brief last week, and you can find it here:
>>>> http://cyberlaw.stanford.edu/node/6684.  We are expecting a number of
>>>> parties to file "friends of the court" briefs.   The EFF's brief can be
>>>> found here:  http://www.eff.org/cases/golan-v-holder .
>>>>
>>>> The Wikimedia Foundation joined the EFF brief in light of the
>> tremendously
>>>> important role that the public domain plays in our mission to "collect
>> and
>>>> develop educational content under a free license or in the public
>> domain,
>>>> and to disseminate it effectively and globally."  We host millions of
>> works
>>>> in the public domain and are dependent on thousands of volunteers to
>> search
>>>> out and archive these works.  Wikimedia Commons alone boasts
>> approximately
>>>> 3
>>>> million items in these cultural commons.  To put it bluntly, Congress
>>>> cannot
>>>> be permitted the power to remove such works from the public domain
>> whenever
>>>> it finds it suitable to do so.  It is not right - legally or morally.
>> The
>>>> Copyright Clause expressly requires limits on copyright terms.  The
>> First
>>>> Amendment disallows theft from the creative commons.  Such works belong
>> to
>>>> our global knowledge.  For this reason, we join with the EFF and many
>>>> others
>>>> to encourage the Court to overturn a law that so threatens our public
>>>> domain
>>>> - not only with respect to the particular works at issue but also with
>>>> respect to the bad precedent such a law would set for the future.
>>>>
>>>> We anticipate the Court will reach a decision sometime before July 2012.
>>>>
>>>>
>>>> --
>>>> Geoff Brigham
>>>> General Counsel
>>>> Wikimedia Foundation
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