Kahle vs Ashcroft: Copyright Battle Continues

Robotech_Master writes "People may remember librarian Brewster Kahle as the man behind Archive.org's Wayback Machine and the Internet Bookmobile. He was one of the big supporters of Eldred in the Eldred vs Ashcroft case. Well, he's at it again. A new lawsuit, Kahle vs Ashcroft, has been filed as of March 22nd. Lawrence Lessig comments on this case in his blog." Question number 3 of the FAQ explains that while the Eldred case challenged the length of copyright expansion, this case challenges the breadth.

Comments

Hasn't this already been settled?

[Anonymous Coward]

Not that I agree with the result, but didn't the US Supreme Court rule that effectively "open-ended" copyright terms were OK?

Re:Hasn't this already been settled?

[lukewarmfusion]

Who's to classify a work as "abandonware?" If the author doesn't want the work released, he should have the right to keep it that way. The burden should rest on the publisher, even if that means tracking down the current copyright holder and begging for permission.

Just because you can't find it easily doesn't mean that it should be free for the taking.

Re:Hasn't this already been settled?

[SydShamino]

So does the author have the right to say "I don't want my work released, ever, so any old copies out there can degrade until they are unuseable but no one can make any new copies."????

Answer honestly. Do you believe that this is true, that an original content creator has perpetual rights to control the use of his work?

If so, congratulations, you believe in the European model of copyright, where it is an inherent right of a person.

In the US, however, copyright is not an inherent right. Instead, public domain is the inherent right, and the constitution grants a limited monopoly on creative works ONLY so that the public domain is improved. Thus, in the US, once an author/creator/etc. chooses to write down and release a work, he or she has given up perpetual control of that work. The constitution demands that, after a limited monopoly, the public domain shall inherit the work.

Frankly, I agree with the constitution. Some things belong to humanity, not to the greed or whims of those in control. The sum body of human creativity is one of them.

Re:Hasn't this already been settled?

[Chris Burke]

The only reason we allow the author to have an unnatural monopoly on his idea is so that it is easier for them to attempt to profit off the idea, as an incentive to create the idea in the first place. Eventually, that idea is supposed to pass into and enrich the public domain. That is the purpose of copyright.

If you are no longer making that idea available, then what exactly are the people gaining from your artificial monopoly? What are you gaining? Nothing. The reason for the monopoly is no longer valid.

If you don't want a work published, the solution is simple: Don't publish. If you have published it, but later decided you didn't want to... Well, it's too late, in any event.

Copyright is a bargain between the public and authors. When the public is not benefitting from the bargain, then it should be reevaluated. When neither side is benefitting, then the bargain should be abandoned.

Another Possible Problem

[ewhac]

This suit seeks to have the laws that implement the Berne Convention struck down as unconstitutional. However, my highly inexpert reading of the Constitution reveals that the Constitution and all treaties entered into by the US are the supreme law of the land. The Berne Convention is just such an international treaty. Thus, it would seem that the supremacy clause trumps any argument Lessig et al may bring before the court, since the terms of the Berne Convention enjoy equal footing with the Constitution.

Now, if the US enters into a treaty that is in direct opposition to the Constitution, which document wins? I have no idea if this issue in Constitutional law has ever been addressed.

Schwab

Unconstitional?

[Jay Bucks]

Obviously perpetual copyrights are unconstitional. It explicitly says so in Article 1 of the Constitution...

"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;"

Notice how no execeptions are made for abandonware, shareware, vaporware, freeware or any other type. So now the question to ask seems to be what constitutes limited? My limited copyright time doesnt seem to equal Mickey Mouse's.

Jason
Argue About Stuff

The Court doesn't like repeat challenges

[GPLDAN]

The history of the Supreme Court shows very little traction for the reframing of constitutional questions and going back up. Even though they make a big deal about how this isn't Eldred vs. Ashcroft, it really is a distinction the court will find tenuous. They got shot down on the copyright extensions, they will get shot down on the inclusionary aspects of this.

I believe they are right and the court is wrong on Eldred, but until a Democratic president can get in for another 8 years and Kennedy and Scalia get the boot, they won't win.

Comments are owned by the Poster.

[sulli]

To claim as the plaintiffs do that unconditional copyright has no benefits to the author is ludicrous. The administrative burden of registering every damn thing (website? slashdot comment?) you publish is not something I, or anyone else who wishes to have his/her works protected by copyright for any length of time, wish to have restored.

The abandonware issue is more substantial. A requirement that copyright be renewed for $1, or that it be deemed abandoned if nobody is available to offer the rights after a reasonable period of time, is more rational. Perhaps one of those evil "activist judges" will so find.

Re:Summary: burden authors to make his life easier

[iminplaya]

Standard practice of trying to use the govt. to make your life easier at the expense of someone elses constitutional rights.

That's precisely what "unconditional copyright" does. The author is expecting the gov't to automatically protect his work without any effort on the author's part. If the author wants protection, he should have to go out and "buy" it like anything else. Too many people looking for a fast buck on everything they utter. "Endless copyrights"..."automatic copyrights"... What next? Do you want the gov't to go through the trouble of thinking up the idea for you also?

Actually, it does

[Sycraft-fu]

According to the constution. The reason why we have copyright is Article 1, Section 8, Paragraph 8 of the constution. It says that congress shall have 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". To that end we got copyrights and patents.

Notice, however, that it is quite clear about the reasoning. It is to promote progress, in other words, to make sure the work is distributed. Also notice it is clear about the limited times, in that the author can only have control for a while, then it belogns to everyone.

So it's clear that it is unconstutional to use copright to try and maintain control forever and not share with anyone.

Re:Dear Mr. Ashcroft

[cicho]

"If he were a member of the Islam religion and had had similar objections to nakedness, would you take fault with him then?"

I would take fault with anyone who looks at a statue of justice and sees nakedness.

"So he should be forbidden from praying?"

On the job? Absolutely, unless he's doing it during his lunch break and in private.

This would affect Open Source as well

[Prototerm]

The underpinnings of the GPL is copyright law. If that law now required contributors to go through the "copyright formalities" for them to get copyright protection under the law, then wouldn't this result in the contributed code ending up in the public domain, since a lot of people wouldn't have the time or the money to go through the process?

I can just see the legal tangle such a change would cause for Linux, et al. I also question how well such a change would work with the Berne Convention, since we're not talking about a novel here, written in one country, but a product written by hundreds of contributors from around the planet, both US and elsewhere. IANAL, but this looks like it would be a real mess, with no one winning but the lawyers.

Re:Ok, I'll Clarify

[Robotech_Master]

You make it sound so banal.

The thing is, tracking down the authors (or, rather, their rights-holders) can be an impossible task for just one work. And what if all of the survivors of the author don't know which one of them has the rights? Or even if any of them have the rights?

What if even the records of who owns the rights have been lost? It's almost a self-referential problem...in the era before computers, not only works but the legal documents about the works were stored as paper. And paper can get misplaced, or eaten by insects, or destroyed in fires, floods, etc. What happens to a work that there is no way even to find out who owns it anymore?

Multiply that by the tens or hundreds of thousands of works out there that are lying fallow, and you begin to see that it's not just "a lot of work." It's an immense, totally impossible amount of work. It's akin to the Augean Stables of Greek myth.

Thus, just as Hercules creatively rerouted a river through those stables to clean them out, Kahle and the co-plaintiffs are hoping to make the problem of finding the rights-holders for abandoned works irrelevant.

They're not even talking about stuff that people are still publishing and making money off of. If they're doing that, then they know who the rights holders are, and the rights holders care enough about the stuff to keep it available. They're talking about the stuff that's lying fallow and not benefiting anybody.

To me, this seems like a pretty good compromise between the Mickey Mouse contingent and the Information Wants to Be Free contingent, if it goes through. Let Disney keep Mickey...let people who care about their works keep them. But let us have the stuff that nobody else wants anymore.

I'm sure that there will be some sort of well-reasoned and fair mechanism for determining what's been abandoned and what hasn't. I don't think it'll be arbitrary. I do think that it will do us a world of good to make sure this information does not get lost.