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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.
One line blog. I hear that they're called Twitters now.
Obligatory IANAL. I think "unconditional copyright" is a good idea. I might write a hundred songs (or poems or whatever) in a year and not make any money off of them. It costs money to register your work as copyrighted.
Not needing to register each work simply puts the burden on the "fair use" user. If they want to use my work, then I can grant them the rights to use it. But that doesn't mean that I give up copyrights.
If I am required to register my copyright, then I lose some of the ability to protect it.
As it stands, I am able to create a work and the copyright exists immediately. I can even register the copyright after an infringement takes place and win in a lawsuit.
Want to prove that you created the work on a certain date? Mail it to yourself and don't open it.
People may remember librarian Brewster Kahle as the man behind Archive.org's Wayback Machine and the Internet Bookmobile.
I remember Brewster from when he developed WAIS ......
After all, licenses like BSD and MIT/X are basically public domain anyway. The only difference is that they explicitly disclaim warranty. This is the only reason why I have released software into MIT/X instead of PD. I don't want to get sued if I release it under PD. This would mean I would have to register everything I do with the copyright office or it's automatically under PD? I would support this if there was a way to release writings into PD without incurring any liability for how they are used. I hope they take that into account.
Best. Comment. Ever. Enjoy!
Since authors are, largely, unlikely to care about the rights of people who want to derive from their works, couldn't a reinstatement of copyright registration for works within the United States theoretically drive authors to nominally publish their works in other nations (in order to get automatic protection as per the current U.S. system), and thus drive creativity out of the U.S.?
I don't know if this would occur in practice, and I'm not saying it's a good reason to maintain a flawed system, but it seems like something to think about if/when we design new copyright policy.
Would this case, if ruled in Kahle's favor, make abandonware legal?
People have been distributing old, abandoned software (mostly from the 1980s) on web sites for years, knowing that it is illegal but under the likely correct assumption that they are doing the publisher no harm whatsoever. I have never heard of any true abandonware resulting in legal action, but currently a company that holds the copyright for a program can go after someone distributing it online for free. It makes no difference if they still sell it, support it or even remember it exists.
Of course, there would have to be some kind of definition for what constitutes abandonware, but that would be the case with all other works as well so I'm confident they'll figure that part out. I hope Kahle wins this one, personally.
If you're not part of the solution, you're part of the precipitate.
From the FAQ:
> a freedom, it should be noted, that was granted by an author's voluntary decision not to register his work.
One can as easily reason that first of all, in the old situation, many people would not obtain a copyright simply due to lack of knowledge, means for registration etc.
In the new system an author can still take the voluntary decision to keep a work free by explicitly putting it in the public domain.
The FAQ argues that this makes life more difficult for people trying to preserve things in the digital domain, but that is soemthign that I believe can be addressed by fair use. The FAQ also claims that the new system does nothing to protect authors, but that is not true, it makes that authors can do waht they are best at, creating works.
The term of copyright, the unfair limitation of user rights, and fair use are the issues, not automatic copyright.
I may be missing something, but I think the current unconditional system is OK if other considerations are made. Works are copyrighted regardless of the will of the author, which seems OK. The only problem I see is with proof of ownership documents. I imagine someone falsely claiming that "I wrote this and authorized so-and-so to use it in his college thesis."
The only solution I see is that if the author WANTS to grant rights to any or all, he must prove ownership beforehand. Otherwise, it's more of a hinderance than a help.
The upside is that owners of works who have not explicity copyrighted their material still have rights.
Then again, it may just be bunk.
The works described as "orphan works" in the linked FAQ show a need for some sort of copyright reform. Clearly, there are works out there which hold a good deal of intellectual value, but hold no commercial value for their owner.
Perhaps what we need is some sort of system that if a work has not been used commercially for x period of time, it should be deemed to have no commercial viability and be released to the public domain.
Not to mention, the Berne Convention is a world-wide treaty (and well-liked by megacorps) that may as well be carved in an adamantium tablet. No way they'd be willing to disadvantage US content owners while foreign copyrights are being extended just as freely.
- If the author doesn't want the work released, he should have the right to keep it that way.
THE HELL HE DOES.That line of thinking has caused thousands of hours of vintage TV programming to be lost forever.
If you can't legally buy it, you should be able to freely trade it around.
Besides, since everything is supposed to end up in the public domain eventually, what better way to preserve something?
You forget that copyright is not meant to solely benefit the copyright holder, and noone else.
Amiga Unix is now being spread around the net thanks to someone who had a tape of it and had the forethought to back it up before it degrades. The source code was already lost long ago, so if this were lost, there would be no existence of Amiga Unix at all. And it's said that AMIX is one of the better implementations of it's time, I believe. With your line of reasoning, AMIX would be lost.
Abandonware could be set at, say, 15 or 20 years. More than plenty to let something sit around. And if it can be legally acquired (not used, brand new), then copyright protection is fine. But something like this literally allows someone to destroy a part of history, intentionally or otherwise. And that should be prevented above all, because what good is it if the future generations can't benefit from it?
The issue they are questioning is whether the work should be protected if the author doesn't care. The suit is stating that for a work to be protected, the author ought to be required to express a desire for it to be protected. Also, the author could then provide some means for contact so that permission can be requested.
I agree that difficulty of access does not make it permissible to use without authorization, but see little value in restricting access to works where the author doesn't care. Requiring the author to request and renew copyright merely ensures that they are still interested in maintaining the rights to their work.
Atanamis
I'm wondering about something:
Can anyone but the owner of a copyright sue you for copyright infringement? The reason I ask is because I'm thinking about this concept of saving abandoned art. If no one is left alive who provably owns a work, then who is going to sue you if you copy it? If nobody can be found who has legal standing, even if copying would be illegal, wouldn't it be not much of a legal risk to go ahead and copy the work?
While I wouldn't have chosen your examples, I agree with your point.
An example closer to home: 20 years ago I wrote the original CoSy software used by, among others, the BIX conferencing system. The original copyright was held by University of Guelph, they later sold (some?) rights to a company called SoftWords. When BIX eventually closed up shop, a number of Bixen wanted to keep up the community on their own CoSy system. SoftWords hadn't been selling the software in some years, but an appeal to both U of G and SoftWords got them to agree to release CoSy under the GPL.
Problem was, neither of them had a readily available copy of the source nor were they inclined to spend much effort digging for it.
Fortunately, I still had a copy (ancient but readable), and the project lives on on Sourceforge. (The "son of BIX" lives on as Noise Level Zero, nlzero.com).
But what if Softwords had gone out of business, the assets dissipated and nobody even knew who had the rights to the software anymore? (Hmm, sounds a bit like Unix in some ways). That's certainly abandonware, but under the current law it wouldn't be public domain for another 75 or so years.
-- Alastair
This problem really arises because of the inherent differences between software and other works, like books for example.
When an author writes a book, it probably takes a significant amount of time, goes through an editorial process, and in the end is copyrighted as a completed work. There might be minor corrections later on, but the work is basically finished.
Software, on the other hand, evolves over time. The first version of something probably doesn't take that long to make, depending on the project. A single contribution to an open source project could be quite small. And it's likely to change sometime down the road.
The two things are just so different that having them governed by the same system is just silly, IMHO.
Here's another. And another. And another. Just look for "oil" on the page.
Prevent email address forgery. Publish SPF records for y
What if there was a compromise between the two systems? For example, as an author, I automatically got 5 or 10 years of automatic copyright protection of a work upon creation. This gives me time to create something and then decide if it is going to be profitable enough to continue copyrighting. At the end of the grace period, if I want to keep the item copyrighted, I have to register it for a fee with the government. This copyright then lasts for whatever the government says (currently set at 50+ life of the author).
Hell, though this system you could even set different fees for different lengths of copyright (up to a max # of years). You have a piece of software? Set it's copyright for 25 years and save yourself 1/2 the fee. If it is still profitable at the end of the term, you can extend the copyright to the remainder of the term for the remainder of the fee. Granted, the fee may have gone up by then. You have a comicbook character that might be profitable the whole time? Copyright the whole time and pay the full fee.
But if the author does not think the work is worth taking the time to do a few hours of research over a period of 5 or 10 years, the work becomes public domain. And don't tell me that 10 hours of research, plus 1 hour to fill out forms for each piece of work is excessive. This is spread over a few years after all. How many people are going to create nothing but profitable works?
Just my 2 cents.
Now, if that makes sense to anyone, could you please explain it to me? I think I've confused myself.
Just to clarify: The Constitution provides Congress the authority to legislate copyright into existence:
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
The form of copyright restrictions that you mention were authorized by Congress through various laws down through the last 200 or so years of history ... they are not present in the Constitution itself.
but until a Democratic president can get in for another 8 years
Let's not forget that the last "Democratic" president sold us down the river by signing the DMCA (Digital Millenium Copyright Act) and CTEA (Copyright Term Extension Act) into law. His name is Bill Clinton.
I consider the CTEA the more egregious of the two, as it is a complete handout to a few corporate interests with nothing given back to the public in return. But this seems to be congress' standard operating procedure (SOP) these days.
There is no indication that the current presidential candidates (esp. frontrunner Kerry) would not do the do the same. Indeed, his website mentions nothing about copyright issues or "digital rights".
and Kennedy and Scalia get the boot, they won't win.
Appointments to the court are for life. So the only way they get the "boot" is if they "kick the bucket".
Let's not forget the decision in Eldred vs. Ashcroft (challenging CTEA) was 7 to 2, meaning it was not even close.
I had thought (along with others) that the current court's propensity to limit federal powers would come into play here, but it did not. Essentially they said that while extending copyright terms may be a bad idea, it is within congress' power to do so.
While I'm glad to see Kahle vs. Ashcroft, it is for this reason I believe that it is doomed.
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.
The court does occasionally revisit decisions by hearing variants of issues that have appeared before them in the past, and is how they occasionally reverse themselves.
I do not think that they will get shot down because of the "inclusionary" aspects of the case.
Rather they will get shot down because most judge's eyes "glass over" when you mention copyright to them, and usually default to giving more rights to copyright holders.
This coupled with legislators favoring corporate over public interests is why we have the vast expanse called copyright law today.
Take the cheese to sickbay, the doctor should see it as soon as possible - B'Elanna Torres, "Learning Curve"
To the person who writes "That line of thinking has caused thousands of hours of vintage TV programming to be lost forever" I can only say "oh, the humanity! I tremble with the loss to the ages to which follow!" To the folks who point out that lifetime (or close to it) copyright is what some here think is okay, and that that's oh so European of us, I'm thinking this: I'd like to distinguish between copyrights accrued to human beings and corporate entities. In the case of a single human being, yes, I think that absolute control over publication should exist as long as does the person. Once the person is dead, or if the work was never generated by an individual to start with but by a subhuman entity such as Microsoft then yes, I can see not giving them creative control. In current US law, this approach won't work; corporations are people and get the whole bill of rights, because the law is an ass and has been settled for more than 100 years on this point. If it works in Europe, great. Go for it. also, please note: I distinguish here between copyright and patent. In software, I realize, that's a way less clean distinction than in door hinges or sonnets. In this particular case, I can't be sure who I like less, Kahle or Ashcroft. I know more about Ashcroft lately, so it'd probably be him, but man oh man do I dislike Kahle. Please remember, his internet archive project was something he just decided to do because he could. When he first cut loose his spiders and started hoovering the nascent web, he made no effort to drum up consensus over what he could and could not inhale. I see his arguments now as his hope to be able to break out, down the road, his archive of things from the early days, legally. Fortunately for me, at the time I was attending a school with an asskicking legal department. I wrote the archive a note suggesting that they'd needed to tell more end-developers about their plans, and they wrote back and acted, in essence, as if I was telling Galileo that the Earth was the center of the Universe. A bit back, I went and looked - and to my delight discovered that that entire university's student websites from the time had been pulled out of Kahle's archive. Not because of anything I'd done, I don't believe, but because it was a big school with a real legal department and they asserted copyright on their students' behalf. And more power to them. But I also know that that's only for now, it sounds as if he'd like to pull a google and do an ex post facto rule change on all of us who were working or fucking around on the net at the time. I suspect, that as with Dejanews and Google, he's hoping to make a buck out of bringing that long-dead shit back to life. So, my problem is this: no one on earth could reasonably have expected Ashcroft to know any better. He's behaving pretty much as expected, rolling around in post-911 legislation happy like a pig in shit. Kahle, on the other hand, is in a whole different ethical landscape. He could and should have started out being much more overt about his plans, and much less snippy with people who, shortly after he went live, heard about it a little too late and wrote him.
Joe replied to me after I emailed him at the above address. He told me that he is wanting to republish PCVR, which is why he has the links up, but that he hasn't had time to convert them over to PDF. I sent an email with my interest, and I am hoping he will respond in kind, maybe I can help him get the project rolling, or something. I will post back here on what happens in the next few days...
Reason is the Path to God - Anon
A-theism: without theism. An atheist is a person without a god belief and that is all. A man raised by wolves in the wilderness is an atheist not because he believes that a god does not exist; he is an athiest because he has no conception of what a god is.
The problem with saying that atheism has not been proven is that the burden of proof lies with the person making the claim. If I say that invisible pink unicorns exist then the burden of proof falls on me. It is my job to prove that they exist, not your job (maybe you are an aunicornist) to prove that they do not. Likewise when a theist makes the claim "A god exists" it is their job to prove the existence, not the job of the atheist.
An agnostic is a person who believes that man can never have knowledge about a god. An agnostic would say that we can't say if God exists or not because this is impossible information for humans to know. Agnosticism is the positive belief that "Man can never know knowledge about God." While athiesm is the lack of a belief in a god, a negative. Agnosticism is one of the more misunderstood religious beliefs. If you do not believe that man can never have knowledge of God then you are not an agnostic.
-Al
Copyright is now automatic and mandatory. You, as the creator of a work, cannot voluntarily put it into the public domain. All that you can do is to license it with the most open and explicit license that you can think of. See Slashdot's Terms and Conditions for an example of a licensing scheme that you've agreed to, whether you know it or not. Saying "this work is in the public domain" is not sufficient, as "public domain" has no meaning in law except for works for which copyright has expired.
If you think this isn't an issue, consider what happens if you unrestrictively license a body of work, and then step in front of a bus. The copyrights pass to your estate, and for the sake of argument, we'll say that's an Evil Nephew. Now, how sure are you that your license is "irrevocable and in perpetuity"? Are you absolutely sure that it's water-tight? Can the Evil Nephew revoke the license? Can he prevent people who currently have copies from making futher copies and passing them on?
It gets even worse where the intent and licensing is unclear. If a work doesn't bear a copyright claim, a clear license, or other identifying information, how do you even know whether you're allowed to copy it? The creator, or his Evil Nephew, could turn up any day and sue you for reproducing their work. It's safer not to duplicate and distribute at all, and that is very much not what copyright law was intended to do. It was intended to encourage dissemination of work. Implicit mandatory copyrights creates a culture that strangles the public domain.
The core of Kahle vs Ashcroft is that copyrights should be something that you actively choose to claim. If you don't, for example, care what happens to your Slashdot postings, just don't put "(C) 2003 $YOUR_NAME" on them. It's pretty much as simple as that.
If you were blocking sigs, you wouldn't have to read this.