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The Mouse That Ate the Public Domain
An anonymous submitter writes: "Antitrust lawyer Chris Sprigman has written a thoughtful column In Findlaw's Writ on the issues behind the 1998 Copyright Term Extension Act and the legal challenge (Eldred v. Ashcroft) to that law. I only spotted one mistake. Sprigman states that Disney's 1967 movie The Jungle Book came out a year after Kipling's copyright expired, but I can't see how, under the terms of the 1909 copyright law, an 1894 book could have had its U.S. copyright expire much later than 1950. Except for that one glitch, (if that's what it is) it's a fine column. There's no explicit mention of computer software except in the mention of the title of a 1970 article by Stephen Breyer, but everything he says about the usefulness of the public domain in literature applies with a vengeance to source code. And his is discussion of the U.S. Constitution's framers reminds us (though Sprigman doesn't develop this point extensively, and might not himself put it in as blunt terms as I'm about to) that there's even a deeper reason than utility to cherish the public domain: it is our right."
The copyright extension act (passed at the behest of Disney and the Gershwin heirs, who cynically manipulated the death of Sonny Bono to their own ends) was a bad law. What's more, I think it is an unconstitutional laws. Whatever you think of copyright, the law in the US is clear. The Supreme Court has ruled that the Constitution provides Congress the power to grant copyright solely for the public benefit. It is part of what has been called the "copyright bargain". The public gives up for limited times the freedom to copy the work, in return for the production of new works as a result of the exclusive copying incentive. Retro-actively extending existing copyrights by definition cannot encourage the production of new works, which is a major justification for copyright law. (The companies will surely argue in friend of the court briefs that giving them additional copyright time will cause them to keep old works in distribution, which is a public benefit. We'll have to see how this plays out). Companies like Disney don't need gov't subsidies. The Gershwin heirs should go get jobs. Authors already had life+50 years protection before the new law. How much more can you want?
Ask any staunch patriotic working class American what they think hollywood suits should be paid. "I work in a fish gutting factory for minumum wage, what do they do? Make fancy pictures. I'd give me remaining 3 fingers to do what they do for half of what I make."
Heh, the truth be told is that the answer on how much someone should be compensated is simple. Aim to give them money equal to middle class people so they can make a living doing art.
Granting a dynasty to hollywood, sports players, or musicians... Not only is easily viewed as unfair, but detracts from the actual art they are to produce.
Some easy to see detractors:
Instead of aiming more art at specific groups, art becomes less targetted at a general audience.
As for sports, the teams that can pay the big $$ can get the best players.
God spoke to me
I respectfully disagree.
IMHO the problem is not the laws keeping up, but the principles underlying those laws being screwed with. For example, what if we had just stuck with the original 14 years for copyright. Screw the Europeans and their life + 70 years.
I am not saying that laws never need be changed or added, but I AM saying that the Founding Fathers got it MORE right than any other group of people in power, ever; that the underlying concepts that the USA was founded on are quite in harmony with the Internet and the information age. I can easily imagine the words 'Information Wants To Be Free'on the lips of Patrick Henry. The problem is not the laws being changed too slowly, but too fast, and with courts, congress and the states ADDING new laws where none are needed.
"Everyone is entitled to their own opinion, but not their own facts."
But, copyright law was created before the U.S. reached the Industrial age, which in turn led to large corporate style think-tanks. These laws were aimed at private inventors rather than large corporations, so when you bring a company like Disney into the equation there is sure to be some abuse.
The general attitude for copyrights has shifted dramatically during the past 200 years. Originally the sole purpose (whether you agree or not) was to motivate further technological and intellectual progress. In the 19th century this shifted to protecting the property of corporations (although not so much until the the 20th century when the industrial age evolved into the information age).
The solution is definitely not to eliminate copyright law outright, simply widespread reform. Being a capitalist country should not rely on government protection of property, seeing as how that is contrary to the concept of capitalism in general. But we do need government intervention to aid private inventors, perhaps in the form of government subsidies. As an added fact, we need to keep at least some copyright laws to keep all those copyright lawyers employed.
There should be different copyright schemes depending on the type of "work" that is copyright. Art and literature have no shelf life--they can be enjoyed thousands of years after the author has passed away. It is reasonable for the author to retain copyright to their work until at least the day they die.
However, technology has a finite lifecycle of a much shorter period than the average person's life. Software is constantly being re-coded and the old code discarded. For 'code' the copyright lifecycle should be a lot shorter, as is the shelflife.
-Sara
There's no mention of this in the article, nor apparently in Eldred v. Ashcroft ... I wonder if they are pursuing this angle.
Let's say you're a songwriter. You write a hit tune. It goes to the top of the charts. You collect royalties up the wazoo. Great. A year later you realise, that since you're getting enough royalties to live comfortably, you really have no reason to write more songs, other than you might enjoy it. So you say, I'll write tomorrow. I've got lunch dates all day today. And you get lazy. Soon the public (your fan base) is funding your inaction.
But if the copyright only lasted long enough for you and your label to recoup expenses and make a tidy profit on top of that, chances are you'd be getting back to work a lot sooner. When you're hungry, you work.
c-hack.com |
I don't see how any of this applies to computer source code. If the source was never released to the public then I see no obvious reason why it should ever lapse into the public domain. The binaries which were released should have limited copyright protection, but it's not evident to me why something which was kept private should be required to be made publicly available. Do people's diaries and journals don't become public domain after their deaths? This is the closest analogy I can think of.
The article's closing sentence is: Perhaps if campaign finance reform succeeds in helping good arguments compete against ready cash, copyright will right itself.
The fight against DCMA, copyright extension, UCITA (or whatever it was - the law being peddled to states to give click-through licenses teeth etc.) are all worthwhile, but they are attacking the symptoms. The influence of money over politics is the cause.
(Disclaimer: I'm not a US citizen or resident, so arguably this really isn't my business.)
Anybody want to get some easy karma by posting links to campaign finance reform organizations?
Quattuor res in hoc mundo sanctae sunt: libri, liberi, libertas et liberalitas.
I don't know that any law specifying "life+x" is a good idea, particularly if x is small... it's too easy to set life=0.
---If you can't trust a nerd, who can you trust?
So, a math problem should be solved with more math?
Your first book was terrible, why do you think you should write another one?
Your first argument had some logical flaws, why do you insist on continuing to reason?
Let me get this straight, you have a bug in your computer source code, so you are going to write even more source to fix it?
Explain, please, how this works?
I think the idea here is the limited monopoly granted to, say, the holder of a patent. The patent holder has the ability to prvent anyone else from creating the patented item.
Hence, the patent grants the owner something of a limited monopoly on the item.
I don't think, as you can take from the context "But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced" that they were talking about Microsoft-style monopolies, but rather the limited rights granted under patent/copyright law.
Note that current patent law is VERY similar to the first patent laws written in Venice in ~1474 (search for it online).
Copyright law originiated/became important with the mass-production made possible by the printing press.
What's happening to copyright law is VERY interesting as it was created in a time where the methods of reproduction were very limited, namely to those with printing presses. Now, when anyone can produce perfect digital copies and distribute them easily, where should copyright REALLY be going? Instead of bemoaning all the (quite poor) new legislation, make some POSITIVE suggestions
(ie, come up with reasonable suggestions for limiting length of copyright on a per/item basis: music 20 yrs, movies 10, etc, etc...)
-Dan
I will never show you source code I've written for certain programs and that is my right. Public domain is not applicable to items used in the creation of public works, e.g., source code as compared with the resultant application, but rather to works shown to the public in general (in OSS, this does include source code). If I decide after releasing a final version of my product, to erase all copies of the source code, that is my right. If I decide to keep one copy of the source code hidden in a safe box in an undisclosed foreign country, that is also my right. If 100 years later the government says my heirs must turn over said source code, they can plausibly deny its existence. Public domain is essentially equivalent to brute force but brute force can easily be outwitted. I am not saying this as an opponent of OSS, as I plan to release all my important code through GPL/LGPL but I am saying it as someone who sees too many people on /. assert their rights to things which they do not own.
The author is applying a 1909 US law to a british subject. The british at the time had their own copyright system, which also had been updated several times. One of the updates was the allowance of copyright rights to british subjects living abroad. Thus kipling would have qualified for the British copyright, which was honored by treaty.
Yeah, you might say that extended copyrights seperate the real musicians (the ones who do it no matter how much money they have/don't have) from the posers, and perhaps even thereby insure a generally higher quality level, but take F Scott Fitzgerald. I read somewhere that he wrote so much because his royalties couldn't support his crazy lifestyle, so he had to keep churning out stuff to stay afloat. Maybe there are a lot of people who have less demanding personal expenses who could produce quality work, but just get lazy. But is it society's responsibility to motivate these people? We'll always see quality work from dedicated artists, now matter what the laws are, but maybe reducing the copyright term might give some of the more unmotivated ones good reason to get out there and do some work. On the other hand, would that mean we'd just have more mediocre crap around? On the third hand, my Fitzgerald reference proved that you don't have to have a divine inspiration to create quality work, you just have to sit down and do it, for whatever reason. A very complicated issue, to be sure.
That's a very good point, about labels sitting on content until it falls into the public domain, but I'm sure musicians could include something in their contracts about immediate release. Plus, if the material was in the PD when it was released, then other people could distribute cheap copies and the label would make way less money.
One thing is sure: Anyone who creates anything, whether it's CDs or code, has a higher responsibility that only they can decide how to come to terms with.
c-hack.com |
Art and literature have no shelf life--they can be enjoyed thousands of years after the author has passed away. It is reasonable for the author to retain copyright to their work
So what happens when somebody owns a copyright on every possible melody? It makes it pretty damn hard for songwriters to create something new. See also bananas and elephants.
until at least the day they die.
Corporate authors do not die.
For 'code' the copyright lifecycle should be a lot shorter, as is the shelflife.
The current U.S. copyright law framework provides no way to distinguish between "code" and any other literary work. Remember, code is speech, and speech is code.
Will I retire or break 10K?
Repeat after me, class: Intellectual "property" is not property . The whole stupid term only came into use within the past two decades, for goodness' sake; and only because the Content Cartel wanted to push its insane definition of copyright infringement as "piracy". In other words, the people calling it property are -- amazingly enough -- the people who most benefit from the misidentification of intellectual output as property.
It boils my blood to see the argument framed using terms that were designed to bias the debate toward one side. It especially boils my blood to see the opposing side accept that stupid definition of terms. It's time to get over it, so we don't keep refighting a battle that shouldn't have to be fought in the first place.
The Mongrel Dogs Who Teach
Except they don't "own" the code. They hold the copyright to the code, an entirely different thing. Once you accept the fallacy that you can "own" code -- or music or literature, or what have you -- than it makes no sense for there to be any expiration of copyright. That, after all, would be a taking.
But since intellectual output is not property, it cannot be owned. Copyright is a state-granted monopoly on a service (copying), not a state-granted piece of property. The intellectual output is licensed, so to speak; and of course, thus the license can expire. It's more like leasing mineral rights on federal land than purchasing property from the federal government.
The Mongrel Dogs Who Teach
If you only produce one brilliant idea, why is it in my interest -- or anyone's interest, or the interest of the nation as a whole -- to distort technology, the laws, the courts, or the market to subsidize you for the rest of your life?
The Mongrel Dogs Who Teach
entertainment
Pronunciation: "en-t&r-'tAn-m&nt
Function: noun
Date: 15th century
1 : the act of entertaining
2 a archaic : MAINTENANCE, PROVISION b obsolete : EMPLOYMENT
3 : something diverting or engaging: as a : a public performance b : a usually light comic or adventure novel
Somebody needs to remind the ENTERTAINMENT industry just what exactly their place is in the grand scheme of things! They've bent and twisted copyright laws and now they want to cripple every digital device under the sun, and for what? To protect Mickey Mouse cartoons and a few lousy movies??? NO! It's ENTERTAINMENT! It isn't something that actually matters that much! Yeesh, You'd think that it was a "national security" issue...like protecting nuclear secrets or something!
No Disney, you can't cripple all the computers. People use them to do things that are more important than a stupid cartoon mouse...like helping to treat the sick!
You're using her as bait, Master!
In reality, they could probably keep this from happening with trademarks. I'm pretty sure "Mickey Mouse" is a trademark of Disney, and that will protect them ad infinitem, as long as continue to protect it.
"If English was good enough for Jesus, it's good enough for everyone else."
Prior to that date, his work would have been subject only to "common law" copyright (which no longer exists in the U.S.) and which had an indefinite term.
Minor clarification: "Common law" copyright primarily protected unpublished works. U.S. copyright law now protects unpublished works for the normal copyright term plus 25 years.
Will I retire or break 10K?
I tend to agree with you, at least as respects machine/object code, but for different reasons. Machine code is code made by machines for machines. But the Constitution only authorizes Congress to protect the "writings" of "authors." I submit that the Framers never contemplated or intended that the concept of an author would encompass a machine or that something made by non-human hands and not readable by humans could constitute a "writing" within the meaning of the Constitution.
IANAL, but with the way the American legal system is in place now, this is what seems to be the digs. Source code is copyrighted - algorithms can be patented. Object code can be neither.
Source code is a personal interpretation of an algorithm - a description in a particular language of a method for manipulatig anabstract quantification of a problem. That it happens to be realized on a computer is irrelevant - if a group of children understand the syntactic structure and semantic content of C++, you can write a parallel quicksort algorithm on a chalkboard, give them each cards with numbers on them, and have them quicksort the numbers. Source code is not a method - it is a description of a method. For all intents and purposes, it is a literary work, at least according to the U.S. Copyright office.
Algorithms are methods - the RSA cryptographic protocol and the Lempel-Ziv compression/decompression algorithm are methods. They were patented, and the patent for RSA expired (Lempel-Ziv compression is still patented, AFAIK).
If I take some source code, change all the while loops to for loops, change all the variable names to arbitrarily-assigned integers, and add an instruction to "do nothing for 5 minutes" between each basic block of actions, have I fundamentally altered your method? No. Your source code? Yes. Your resulting time/space complexity? Probably. This is why a "clean-room" implementation of existing code doesn't violate copyright. Person A didn't see Person B's code - if neither of their code looks the same, and each accomplishes the same result, how can you prove that A copied B's, or vice-versa? A similar argument follows for object code.
The problem is that the courts did not agree with you about code and patents. See there is this very old rule that you cannot patent mathematical formulas or physical laws. those things are said to be too abstract, and not really inventions. When the problem of code started coming up, the courts decided that code is more like an abstract mathematical formula than a machine. I think the courts were quite wrong on that one, and they did not understand the true nature of software. So they decided to make it unpatantable. I guees it is relevant that back then patents were a bit unpopular with the federal courts, who really disliked monopolies and limited patents whenever they could. Because software is unpatentable copyright protection was sought. Now software is patentable but copyright protection is widely used already. And it is free. Although copyright lasts much longer than patents it is not as powerful as patents. You cannot copyright an idea although you can patent one. So I dont think that copyrighting of code is that bad after all. It prevents you from copying code, but does not prevent you from doing essentially the same thing the same way if it is done with different code.
behold:
- An Idea, as you refer to it, is an heuristic/algorithm. This might equate to a 'problem' for structural or mechanical engineers to isolate and define.
- Source Code amounts to little more than working blueprints or mechanical drawings under this excessively tight metaphor. Blueprints can (and should be), of course, be Copyrighted.
- Object Code is ultimately a physical relationship of modular components, and the only practically useful form of the art. It is entirely equivalent to, in fact, by definition is a mechanical system.
Take for your example the simple fact that you or I could, with enough resolve and determination, implement absolutely any software using naught else but millions of garden hoses and 3-way water faucets (presuming limitless water pressure and component durability, and forgiving the latency inherent in manually turning all those knobs in sequence...)It seeems that your rebuttal consists of little more than towing the party line, whereas I am attempting to advance the state of affairs with a little rational consideration. That you fail to even hint at consideration of my points in your attack against my comment would indicate, at least to me, that you have little creativity and/or only the smallest grasp of the over-all picture here. I don't mean to be overly harsh with that, but you could at least rebut my actual points rather than just condescending to give me a cursory lesson in the basics of this current and timely debate!
Patent law has nothing to do with software. The mechanical argument fails as the intent of a program is not the setting of gates (so a program rarely deals with the gates), it is the production of a desired transformation of some input data to some output data. This can normally be achieved in many different ways. Indeed the only examples that can't be done in different ways would very well serve as the definition of "obvious" when attepting to overturn the patent.
Patent law does not cover effects and two patents can be issued to two different lightbulbs which achieve their effects in two different ways.
Since the method of "setting the gates" for a software effect varies, even with the same source code, based on the processor, memory configuration, and compiler version it is impractical to the point of impossibility to apply the mechanical argument. There is simply no possibility of enforcing such an approach in software and there isn't even very much logic to trying.
The strongest approach is copyright on the source code itself which abstracts the whole gates thing to a level where it is at least possible to debate whether something has been copied or not.
Even this, however, is difficult as differing programming languages have some very different ways of expressing the same thing. Try APL, Forth, Lisp and C++ for multiplying two matricies; could you prove that they had been copied from each other (or that they had not)?
The final approach is to patent/copyright an algorithm. This, though, is a real can of worms. Since an algorithm is simply a list of instructions, allowing the protection of these as if they were property means that there is no reason I can't "own" the best route from my street to the shops and route-finder programs would be a legal nightmare. Even cookery books would become rich pickings for lawyers as these are simply collections of algorithms (if we split algorithms for computers into a special category and ignore everything else what happens when a machine is programmed to make bread, is that covered or not?).
So, perhaps the "(self-styled) brightest minds" of the age have actually thought about the difficulties involved in these issues after all. Isn't that reassuring?
TWW
"Encyclopedia" is to "Wikipedia" what "Library" is to "Some people at a bus stop"
If they actually made copyright extensions roll all the way backwards as well.
For example, suppose copyright is extended. We would then apply that to all older works too, and find that when Disney made their Jungle Book film, the Jungle Book itself was still copyrighted. Thus, Disney must immediately start negotiations with Kipling's estate or lose the royalties they got from the film (inflation adjusted). Likewise with Hans Christen Andersen, etc..
I think this is a really good idea, actually - after all, if these firms seek copyright extensions they surely ought to seek for *all* artists to get the extension, including those whose lapsed copyrights were exploited in the past.
After all, heaven forbid that they were using the law as a competition weapon by cherry-picking the public domain now and then having copyright extended to cement their claims on the ideas..
Copyright is a government granted limited monopoly that must (according to the US Constitution) be granted for a very specific and limited purpose and for a limited term.
The records of the writers of the Constitution unanimously make it very clear that copyright is not property and that it must be limited; that it is granted for a purely pragmatic purpose. Some, Jefferson particularly, were opposed to as strong a measures as even the original limited 14-year term (granted only after registration with the Lobrary of Congress and after payment of the appropriate fees).
That's the Constitutional picture. It is the law that is supposed to bind Congress, the President, and the courts.
"My opinions are my own, and I've got *lots* of them!"
This is a question that's bugged me about a lot of laws. The Constitution explicitly denies Congress the right to write an ex post facto law - yet the CTEA certainly goes into the past and extends copyrights. How is this not blatantly unConstitutional?
Jon
The real reason for DVD region coding: a publisher may not be able to secure the worldwide rights for a particular copyright.
I don't believe this for one second. Even if I did, I can't see how that makes the manufacturer of a DVD player responsible for protecting the publisher from an infringment suit abroad. The publisher should avoid publishing in jurisdictions where he has not secured his rights. If a bootleg copy makes it into the as-yet-unsecured market, that is no fault of the publisher or the manufacturer.
Edith Keeler Must Die
As an author, I'd like to see the market itself play more of role in copyrights and patents. I'd like to see them traded and sold, and I'd be very interested in seeing the public have the ability to retire a copyright by paying for it. Library associations or the government could put a work into the public domain by insuring that the author has a good amount of money for it.
Something like this system would accomplish several things at once. It would give the government a nice way to compensate artists for their art (like the National Endowment for the Arts, but less opinionated, since the money would come after the completion of a work). It's certainly more democratic. And MOST importantly, such a market would give artists a VERY good reason not to sell their rights to an industry.
Come to think of it, a market as such would be the perfect marketing vehicle for artists as well. "Say, that band Squidloaf has gone up five points in the last week -- maybe I'll check that out."
All the law needs to say is essentially, "respect copyright". After that, the market takes over and decides how long the copyright lasts, and the market allows anyone to retire a copyright, whenever, for the right price.
I'm just thinking off the top of my head, so I may not be seeing any inherent "bads" in such a system, but honestly, at first glance, it seems to be a natural way to value art in our culture and gives artists an option to release their work to the public domain and an incentive to keep it out of other people's hands (since they could make some money off of it).
Actually, the idea gets ridiculous when you start thinking about futures on copyrights, but that's a different story.
_________________
Hmmm - this doesn't seem to be TOTALLY off-topic. In fact, it reminds me of another reason Disney inc keeps frantically strangling any ancient work that might grow up and go off on its own into the public domain...
I have to wonder how much of the control has to do with maintaining a "politically correct" image? Here we have Steamboat Willie portraying animal cruelty (Yes, *I* know it's just a cartoon, but a lot of loud people take this sort of thing seriously). Similarly - when was the last time you could find a VHS of "Song of the South" to rent or purchase?
If "Song of the South" escaped Disney's clutches into the public domain, the few copies floating around out there would be distributable, and of course, Disney would be embarassed to no end (and probably harassed by race-related groups to no end). By keeping a stranglehold on what works are available and what works the public isn't allowed access to, Disney has another tool to manipulate the public's perception of them...
Just a casual conspiracy theory...
"Daddy, maybe we can use Linux to fix Windows?" --my daughter, age 3(Okay, this part is off-topic but - I've actually done this - booted from Linux to copy data from horribly dead or damaged Windows installations that wouldn't boot enough for me to do so...)
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