All Your Public Domain Are Belong to Us. The opinion argues, among other things, that the passage of the 1790 Copyright Act, and the fact that it gave copyrights to works created before 1790, was not the statutory recognition of an existing copyright (in common law or otherwise) but was, instead, the exercise of a Congressional power to award retroactive copyright — consistent with Eldred but practically nonsense, since such copyright awards clearly cannot have been necessary to “promote … Progress” — or the works so protected wouldn’t have been created in the first place.

I personally enjoyed the discussion of the plaintiffs claim that such a retroactive award violates the originality requirement of copyright (the work’s in the public domain, hence any effort to award copyright to it fails because a public domain work is, by definition, unable to claim originality), but the Court’s argument that originality is (a) not dependent upon a formal temporal definition and (b) that such works must have satisfied originality at one time, or they wouldn’t have been copyrighted in the past, is both unsatisfactory and painfully circular. (slip op. 18) But, IANAL.

Worse, the bar on originality is set dangerously low, IMHO:

In Eldred, the Supreme Court held that the originality requirement means only that a modicum of creativity exists, and did not depend on the timing of the grant of copyright protection. 537 U.S. at 211. Indeed, the requirement of creativity requires only that the author independently created the work.