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Internet Archive Loses Copyright Fight
tiltowait writes "As reported on LISNews.com, the Internet Archive has lost a copyright lawsuit which challenged the Congressional lengthening of copyright terms and conditions. The ruling has implications for abandonware and other copyright-eligible materials that have no active owner. Brewster Kahle plans to appeal the decision." The decision is available. As we noted in an earlier story, the Eldred case challenged the length of copyright expansion, this one challenged the breadth, and so far, this one is going about as well as the Eldred case did. Stanford has an overview of the case.
Wow, that sucks.
I thought abandonware was defined as software that was no longer commercially available or supported. What's that got to do with copyright?
Slashdot: News for Nerds, Stuff that matters only to them
As a long-time consumer of abandonware, this is horrible news. If the product is not available for sale, I would aruge that common sense dictates that the public sharing of the product hurts nobody as the copyright is not being actively protected! The persecution of Abandonware when the programme is still available for purchase as part of a 'legacy' series is understandable, but otherwise it is rediculous.
Besides, the ability to play the games that I once oggled over in PC Gamber but couldn't afford is really quite something.
"There's no success like failure, and failure's no success at all."
- Bob Dylan
Its ironic that the company that probably benefits the most (Disney) from the copyright extension owes it existence to the lack of long copyrights 50 years ago. Lots of the older "Disney Classics" were based on books with expired copyrights. Disney never would have been able to remake Cinderella if the book they adapted it from had a copyright as long the laws allow today.
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One of the things that is happening in this country is that people - especially with issues outside of the sight of the mainstream - are taking their pet causes to the courts for problem solving.
I think we need to face it: the copyright extensions passed by Congress were legal. We had one of the best minds of any generation - Lessig - argue the Eldred case in front of the Surpreme Court. They remained unmoved. Why? Because the Constitution is pretty clear on the issue... Congress gets to regulate these issues as they see fit.
The courts are not the right place to fight this issue. The courts are the wrong place to fight this issue.
Congress is where this is at. They pass the laws, they pass the penalties, they make it all happen. The courts cannot and more importantly should not be used as a legislative tool.
Copyright has swung too far from the commons that defined much of what is good about this country. Congress needs to move it back.
The Courts generally can offer no relief where there is none deserved. What is happening now with the extension, DMCA, etc is *exactly* what was intended by Congress.
Intellectual property, e.g. copyright, is a legal fiction along the same lines as "corporate personhood". The mistake it appears the courts and the legislature are making is to imbue intellectual property with the same sanctity as actual physical property.
Now I'm a Libertarian who works in an idea business, so I understand the utility of intellectual property, but it seems reasonable that the law should require an actual rights-holder to affirm their rights and/or create a process by which someone who wanted to republish abandoned intellectual property could give notice to the purported rights-holder. If there was not a negative response in say, 60 days, the person would get the rights to publish the work.
Just a thought.
Yours truly,
Mr. X
...killer Benihana shrimp...
I create some software.
My company collapses thus the software is no longer sold or supported.
1 year later I create a new company and I want to sell my software again.
The man who trades freedom for security does not deserve nor will he ever receive either. - Benjamin Franklin
The United States government is divided into three branches in a system known as checks and balances. It most definitely IS the job of the courts to keep Congress in line. The courts are the only way to declare any legislation unconstitutional, and get bills/laws overturned, provided enough proof is presented. Googling for "US government checks and balances" produced a site featuring a lesson plan describing the system, and how it should work. The section labeled "The Judicial Branch" describes what the main function of the courts actually is (in a hypothetical situation, but insert any bill and it still works), outside of settling various corporate disputes and injury lawsuits.
From the site:
The Judicial Branch
The Congress is considering a bill that will make criticism of the President on the Internet's World Wide Web illegal. If the bill is approved by Congress and approved by the President, the Supreme Court must be ready to hear arguments in favor and against the bill. The Supreme Court must be ready to ask the Congress questions about the bill in order to learn facts that will lead to a decision in a lawsuit brought by the Press against the bill. The Supreme Court must develop five to seven questions it can ask lawyers on both sides. The Supreme Court will also have to vote on the constitutionality of the bill. Those in favor (there must be a minority of students taking this position even if they disagree with it) and those opposed to the bill must write a "majority" and "minority" opinion in the case.
This is a lesson plan aimed at students, so the five to seven questions thing can be ommitted, but the idea is clear- the supreme court IS HOW TO REGULATE CONGRESS. It's how the government was designed, and the most effective way to combat purchased politicians. I'd hope it's more difficult to lobby a judge (who would be appointed- no need for campaign money), than the local congressbeing (who IS elected, and has massive financial support for campaigning).
That's a very interesting theory. The REALITY is that our dear Congress keeps saying "I am altering the deal. Pray I don't alter it any further" every few years.
Ever since the Bono Act, we are living in an age of perpetual copyright. I do not expect any current copyright to expire in my lifetime. It's far less likely to happen than Social Security being solvent in 2040.*Perhaps* this is because *that's the deal* that *your band* *agreed to* when *you* *signed* the *contract*. It's *the price* for a *chance* at *major label* fame and *fortune*!
"Who are in control, they are not in control of anything - they don't even control themselves!" - Glen Beck
I'd say that allowing a copyright owner the ability to exercise dog-in-the-manger style control, by intent or by apathy, is clearly unconstitutional.
With above distinction, your view reads to me as: "because the law doesn't have the intended effect, it should be declared unconstitutional". Newsflash: this happens all the time, and laws aren't unconstitutional because of it. I read court decisions like this as saying: "Yes, maybe the law doesn't have its intended effect, but we don't deal with that. We only deal with (whether Congress has the right to put that law in place). We (the court) decide that Congress has that right".
A pity, but I can accept that. It just means that Congress/lawmaking is the place to fix this, not the courts.
For a suggestion, I quote from the Stanford article: "For the first 186 years of our Republic, copyright laws established an "opt-in" system, one in which copyrights were secured only to those who took steps to claim them. In 1976 and 1989, Congress inverted this regime, transforming copyright law into an "opt-out" system, one in which rights are granted automatically and indiscriminately unless disclaimed." (anyone know an important reason why this change was made?). Me thinks it would really serve the public to revert that change, back to an opt-in policy, where authors have to take active steps to secure copyrights. That would solve the orphaned-works problem in an instant.
Too bad, the copyright-profit industry clearly has better lobbyist teams working the Congress than the public has.
What you say is true, but Congress doesn't simply pass laws saying "None of Disney's stuff will ever pass into the public domain." (Which would be bad enough...) Instead, to avoid blatantly showing who they are serving with these copyright extensions, they extend the copyright on everything published since Steamboat Willy (which is the first appearance of Mickey Mouse, if you didn't know.) The result: an impoverished "myth spring", and a gradual depletion of "free ideas" that are available.
You see, once upon a time, the idea of "intellectual property" and "copyright", would've been laughed at. I mean, when I tell you a story, I still have the story, right? Languages and numbers only become more useful with each new person who learns them. However, all knowledge is power, and many people preferred to keep that power to themselves. A fine example is the Masons, who prospered for for many years due to secret stoneworking techniques and still have a reputation for secrecy to this day.
As a way to encourage the sharing of ideas and works of art, the idea of copyright was conceived.
The purpose of copyright is to encourage artists to share their works with the public by allowing them exclusive publishing rights for a limited time, after which those works would enter the public domain.
Would Disney have been able to create Snow White, Sleeping Beauty, The Little Mermaid, etc, if the inspirations for those works had not been in the public domain? Of course not, and Disney's success is one of the best arguments for the necessity of allowing works of art to pass into the public domain. Yet Mickey Mouse (and literally thousands of other works of art, published since 1928, the first appearance of Steamboat Willy) has not passed into the public domain, as would be proper. Instead, every time that mouse comes close to becoming public property, Disney lobbyists donate money to purchase another copyright extension, and more and more works that should belong to society as a whole are dragged along with Steamboat Willy.)
The public has been denied the compensation it deserves for allowing Disney the copyright in the first place, and it seems that will continue to be the case, until a sufficient number of people wake up to what we are losing in exchange for Disney's success.
And then it continues with ''Well, we have a new program that does the same thing. That will be $89.99''
One unique property that software, fiction, nonfiction, and other creative works have is that they *NEVER WEAR OUT*. Thus, old creations are direct economic competetiors to recent creations. Thus, the cheap availability of old creations in the public domain would affect and depress the market of recent creations. The copyright feudalists have done their best to keep this from happening by keeping old creations far away from the public.
Thus, copying old artistic works/abandonware could be detrimental to current creation. For instance, if copyright law was 42 years, most black&white film archives would be out of copyright --- I'd expect a lot of reruns of those instead of recent creations on TV.
Unfortunately, keeping old creations far from the public and rotting away is also destroying our cultural largess to our descendents. Under the current law, our cultural heritage will be lost. How many 80's arcade games are already lost forever? How many would have been lost forever by now without MAME?
To me, the preservation of our culture for the future is more important than an argument that the professional creation of modern cultural works would suffer a minor economic decline. Personally, I think the availability of more culture in the public domain would lead to a bit less professional creativity, but VASTLY more total creativity.