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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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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.
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.
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 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.
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...
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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)
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?
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