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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."
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 |
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?
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.
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."
Then of course you've never published the source code and so it doesn't fall under the purview of copyright. Public domain refers to the fact that -- as Jefferson pointed out -- once an idea is shared even once, it cannot any longer be owned. Thus extraordinary and explicit means -- i.e., copyright law -- is required to secure to the author any monetary benefit, so as to encourage production.
The whole brouhaha over intellectual output arises from a misunderstanding of the basic realities of economics for non-tangible items.
The Mongrel Dogs Who Teach
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.
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"
But we're not talking about mechanical engineers, we're talking about logical engineers who are building not machines but data tranformations which will be carried out by machines built by someone else for the express purpose of performing such tranformations (or "programs").
Why should I be able to patent a method of using your machine when the whole point of your machine it allow it to be so used? This is like patenting a novel because it uses paper in a unique combination of ink-markings to produce a "novel invention". Copyright is much closer to the correct solution than patent law.
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!"
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
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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