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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.
Not that I agree with the result, but didn't the US Supreme Court rule that effectively "open-ended" copyright terms were OK?
Musicians who are interested in this might also be interested in the creative commons license.
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- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
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.
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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.
A lot of those authors are easy to track down. The problem is in getting 70+ year old corpses to sign legal forms.
Any law that requires raising the dead for the public good is bad law.
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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.
"But many books fall into a nether region. These are works that are not commercially viable and therefore not widely available to the public, but are nevertheless subject to continuing copyright protection."
In the event that they cannot convince Ashcroft, they could also start another project which would automate and simplify the process of obtaining this permission.
If anything, making it easier to access this type of information would be beneficial for both the authors and those in search of using their work.
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
Editor, A1-AAA AmeriCaptions
"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
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.
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
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.
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.
sulli
RTFJ.
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?
What?
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.
The whole problem is that they cannot locate authors in order to get permission. The only way they could solve this is by.... having everyone register their work with Kahle & Co. But wait! thats exactly what the government used to do!! You see the conundrum?
[Fuck Beta]
o0t!
My best example:
I have all of the back issues of PCVR magazine (a magazine put out from 1992-1994 relating to homebrew VR using the PC). I would like to republish and give away CDs or downloads of the articles, but to do so I either need to get each author's permission (then likely reset/retype/reformat the article), or contact the publisher. Both of these options have turned out to be dead ends:
First off, getting permission from each of the authors is nearly impossible: most authors didn't list contact information, the few that did either list compuserve or old AOL addresses, neither of which work anymore. The few that do list real email addresses, those addresses likely don't work either (its been 10+ years after all). To make matters worse, some of the articles were written by the publisher/editor himself!
To understand, the publisher/editor of the magazine started it literally in his home (likely in the kitchen or garage!) - the first few issues are photocopied and stapled. It was a real shoestring publication - more of a 'zine for VR than anything else. A great lot of the information presented in its pages has been lost to the community at large, which is a shame because it seems like every article about 3D this or that here on Slashdot, there are posts asking about how to buy or build an HMD for this FPS or whatnot, or other esoteric 3D hardware - and I would love to be able to point these people to the methods and devices already utilised, so that people don't need to reinvent the wheel (and hitting the same stumbling blocks that were already overcome). This is the information that I want to save.
However, I have been unable to contact the publisher: Joseph D. Gradecki. I won't go into any detail as to what I have done to try to locate him in the past (I have already posted that kind of information in long past articles). Let it suffice to say that he seems to have dropped off the face of the planet, or at least the internet. None of his last know address or phone number information checks out. His last publishers (he wrote a couple of more recent books in the late 90's) have no idea where he is (or if they do, they are not giving me any help, which is possible or likely). I don't have the money to hire a PI or anything.
This is one case where having up-to-date information about where the publisher or author was would help. Furthermore, if there was a small burden to keep the copyright up (like a small fee to be paid, as suggested), I have no doubt that most or all of the authors of these articles would have let them lapse into public-domain long ago...
Reason is the Path to God - Anon
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.
"My country, right or wrong; if right, to be kept right; and if wrong, to be set right." --Senator Carl Schurz (1872)
1. There is no constitutional right to copyright. The progress clause of the Constitution gives Congress the authority to create copyright laws, but does not guarantee these rights to authors and inventors in any way, shape or form. Nor does it require Congress to make these laws. Congress could abolish all copyright laws tomorrow and not be in violation of the Constitution.
2. The plaintiff is specifically concerned with books that are no longer published but are still protected by copyright. Books that would otherwise be unavailable to the public.
3. The progress clause of the consitution limits Congress' authority to laws which "promote the progress of science and useful arts". I fail to see how automatically protecting works that are unavailable to the public promotes progress of anything.
Copyright is the means, not the end. The end is the benefit society receives by making creative works available to the public. Copyright is the incentive to do so. If the works aren't available to the public, why do they deserve protection?
People's desire to believe they are right is much stronger than their desire to be right.
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?
The COA declared that you can't copyright the law and that it does diserve the public to have copyrights attached.
" Third, to enhance the market value of its model codes, SBCCI could easily publish them as do the compilers of statutes and judicial opinions, with "value-added" in the form of commentary, questions and answers, lists of adopting jurisdictions and other information valuable to a reader. The organization could also charge fees for the massive amount of interpretive information about the codes that it doles out. In short, we are unpersuaded that the removal of copyright protection from model codes only when and to the extent they are enacted into law disserves "the Progress of Science and useful Arts." U.S. Const. art. I. 8, cl. 8.
Conclusion
For the reasons discussed above, we REVERSE the district court's judgment against Peter Veeck, and REMAND with instructions to dismiss SBCCI's claims."
Veeck vs SBCCI was ruled opsite of what you claim. Laws can not be copyright. What the Supreme Court did was agree with the COA and not here SBCCI on apeal.
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.
I spent HOURS googling about Veeck a couple weeks ago, and somehow picked bad keywords every time. All of the search results referred to the original case, the three-judge appeal, and/or the certiorari, but never the full court ruling. Damn page rot.
Thank you for the correction. It's a fucking wonderful ray of sunshine.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.
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.
Editor Emeritus and Senior Writer, TeleRead.org
You seem to have a few misconceptions.
"If they want to use my work, then I can grant them the rights to use it."
Only if they can find out that you are the copyright holder and if they can also find out how to contact you.
The problem that this is trying to address is the thousands of works that currently cannot legally be archived or utilized due to the near-prohibitive cost of trying to research who (if anyone) is the proper person to contact.
"If I am required to register my copyright, then I lose some of the ability to protect it."
I don't see how this sentence makes any sense at all. If you are required to register your copyright, or to include some useful copyright notice with the original, it merely gives would be (re)users a standard way to determine that you are the copyright holder they need to talk to. You don't lose anything...
Going back to the old "no copyright until you register" system is something else, and pretty radical.
With copyright, you get a government-guaranteed monopoly, backed and enforced by police and courts, paid for by tax payers, lasting decades. It seems entirely reasonable to ask you to at least affirmatively assert your copyright.
(Note that GPL stuff very definitely uses copyright as its base. Do you want to have to register every little release to have a valid GPL on it?)
Yes, of course--why wouldn't I? This could be handled completely automatically, with a nominal, tiny fee. Furthermore, it doesn't have to be every tiny release; even with registration requirements, you get a significant period of time to register. So, GPL'ed software could be registered once per year.
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
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.