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TPP Scuttles Attempts To Fix Orphan Works
jsrjsr writes: David Post, writing at the Volokh Conspiracy blog, describes how the Trans-Pacific Partnership treaty may prevent any changes to copyright law regarding orphan works. Quoting: "Big problem #1 is that copyright law doesn’t require the plaintiff to show any damage whatsoever. And it authorizes awards of up to $150,000 in “statutory damages” for each work that is infringed — independent of any damage assessment. ... It appears that the latest version of the treaty contains, buried within its many hundreds of pages, language that could require the U.S. to scuttle its plans for a sensible revision of this kind. ... Any provision of U.S. law that eliminated 'pre-established damage' or 'additional damages' for any class of works could be a violation of various TPP provisions requiring that such damages be made available, and it even appears that distribution of orphan works would have to subject the distributor to criminal copyright liability."
Like it's news that the TPP is a terrible, terrible treaty and needs to be stopped.
This is just one more reason we need to make quite sure that there's bipartisan opposition to this.
Dan Aris
Fun. Free. Online. RPG. BattleMaster.
There's a greater treat at reach: country control.
Orphan works are potential competitors, even if the true authors decide to release them to the public domain.
If someone dug up an orphan work it's a potential threat to the revenue streams of the current incumbents and in its in their interest to keep it buried regardless of what the original owner may think.
This is especially true when without a valid owner asserting their rights you can't even be sure who the statutory damages are even supposed to get paid to.
OK, I get it, intellectual property is a real thing and needs a certain amount of protection. But you know what? Protecting property costs money! I own a condo and I pay taxes on it - something like 2% of the property value per year! Obviously the tax rates for IP need to be set at a reasonable level, but if a company is claiming x billion dollars of IP, perhaps they ought to pay a tax of a few hundred thousand for property protection. And if they lapse in their tax payments, perhaps their ownership rights lapse too, just as the city or state would take over my property if I stopped paying taxes.
--- Often in error; never in doubt!
It must be comforting to live in a World where everything is black and white, right and wrong, 0 and 1.
You sure don't have to think so hard.
The LEGAL meaning for copyright infringement cannot by definition include the word 'stealing'. It is YOU who are wordsmithing. Infringement is not theft, it simply is not the correct term, you cannot use it in that context without being ABSOLLUTELY wrong.
Good-bye
There is a very simple way to fix the orphan works problem and also let Disney have Mickey forever. The root of the problem is giving free, automatic copyright for 150 years or so to every work.
Instead require that copyrights be renewed every ten years with a one year grace period. First renewal is free but you have to fill out a form on-line. Second renewal is $1,000. Fee for each subsequent renewal doubles. This will quickly place all of the non-economically via works into the public domain. It also lets you keep a copyright forever as long as you keep paying the renewal fees.
IF the fee were tiny for statutory infringement, it might still comply with a TPP (Lord protect us) yet have the same effect.
Millionth of a cent per work, unless actual loss could be shown?
I like the idea of charging a fee for renewal that doubles every time copyright gets renewed though. That is even better
for long term, though cutting statutory damage amount to a tiny bit should also be done. Amount should be tiny
enough that payment is trivial even if everyone on the planet infringes many times. Mathematically it is still
non zero.
The big big big power grab in TPP is the corporate sovereignty clauses. These allow company to sue governments if the government passes a law that disadvantages the companies profits:
https://www.techdirt.com/articles/20150325/17151130431/corporate-sovereignty-provisions-tpp-agreement-leaked-via-wikileaks-would-massively-undermine-government-sovereignty.shtml
The court that decides this is a Kangaroo court too, not a legal court, a tribunal of industry lawyers would decide if a law violates a companies profits and needs to be reversed.
Sugary drink taxes, banning cigarettes, banning bee killing pesticides, you name it, the tribunal could override the elected government on all of these matters. Rendering democracy optional.
No wonder its being discussed in secret by a group of people, but thankfully we still have Wikileaks and the draft treaty has been leaked by a few honest people among the negotiators who are allowed to see how bad it is.
What they'd like is for you have to pay for music by the note, for literature by the word, and pay every time you even glance at an image they own.
Hell, what they want is if you even dare to remember a few notes and hum them to yourself, you'd have to pay them.
Just cruising through this digital world at 33 1/3 rpm...
In this context, the only thieves are those greedy bastards who think they are entitled to take money out of people's pockets, for works that were created, say 30+ years ago, which had all those years to allow creators & middlemen to profit from, and which are basically zero-cost to reproduce. Especially if end users can do the reproducing among themselves.
And you're right: at least that kind of theft should be stopped. If not by having reasonable written laws on the books, then by technical and/or economic means that bypass whatever laws are in place (or worse: regulations slipped in with trade agreements - like the one discussed here).
Personally, I've lost hope that laws (or treaties!) will be fixed. Mostly because the way they are created is broken as well, with no fix in sight. Hence the "bypass using technical and/or economic means" which imho holds more promise to fix the current situation.
The TPP and global corporate fascism are inevitable; suicide is the only way out.
I am glad this is finally catching some attention at slashdot, one of the greatest fraud attempts on people.
If they have to be secretive about it, something is wrong. A global powergrab of multinational corporations, probably a first of that magnitude.
https://www.youtube.com/watch?...
It is theft, just not in the sense of tangible property. What you are stealing is the author's monopoly on control over his own works.
Granted the government itself stole from us by GIVING him that monopoly in the first place, but if you infringe you're still stealing the artist's monopoly.
That phrase is wrong on at least 12,384 levels.
But mostly it's wrong because the word "stealing" implies "transfer". Copyright infringement introduces no transfer. It only breaks the monopoly so no one has it.
I think the longest reach you can make is using the word "vandalism" here.
Seriously, who really believes that world governments would negotiate a treaty of that size and scope without telling their citizens. Honestly, why would they do that?
Until i hear on CNN what Donald and Hilary would do to uphold my values in these important negotiations, the TTP etc will be just another wild, speculative theory like global warming, frackquakes and dinosaurs.
Copyright basically enables them to create near infinite streams of free money without any effort required to maintain them. Don't expect them to give this up without a fight. Even something as innocent as public domain or fair use is treated primarily as possible threat to their pocket.
what about games / software that owner is unknown / the ip rights are now cut up and owned by lot's of different Corporations.
Or cases where the Corporation that made the software is long gone / some other Corporation owns part of them but they don't know if they even have all the rights to all of the IP.
"People of this generation seem to think (thanks to the influence of euphemisms from the baby boomers) that stealing isn't always stealing"
You don't seem to know what an orphan work is. Think of it as a hundred-dollar bill you find in the street. If you're a scrupulously honest person you will turn the bill in to the cops and they, provided it's not Chicago, will wait for a specified period until someone steps forward to claim it. Alter some period like thirty days, it's yours.
But copyright law as recently amended by media corporations means that you can never spend that money, under any circumstances. Either someone steps up to claim it, or no one ever does, in which case you have to keep waiting.
There is a very simple way to fix the orphan works problem and also let Disney have Mickey forever.
To the geek, "Steamboat Willie" is just a symbol.
Eight minutes of silent era sight gags with a synchronized sound track. What he wants is the use of the trademarked character designs for the Mouse, Minnie, Pete and the rest.
Instead require that copyrights be renewed every ten years with a one year grace period. First renewal is free but you have to fill out a form on-line. Second renewal is $1,000. Fee for each subsequent renewal doubles. This will quickly place all of the non-economically via works into the public domain.
Let's call this what it is:
Copyright protection for the mega-corp.
The distressed writer like H.P. Lovecraft loses control of his work early on. The mega-corp squirrels away everything that might be bankable now or in the future. This is how the system worked in the pulp fiction era of Black Mask and Weird Tales, in the newspaper comic strips in their most creative and productive years, and in the gold and silver ages of the comic book.
The renewal won't double every ten years.
If you believe that, I have shares in a bridge to Brooklyn I would like to sell you.
They will be capped at a number the major players can afford as the snaffle up new titles and old by the thousands.
So if I go and download the latest MGS game, I can cancel and recall the Xbox version? I can change the title to Super Sneak Box 64?
"It is theft, just not in the sense of tangible property. What you are stealing is the author's monopoly on control over his own works."
No, it is NOT theft. That is the exact definition of INFRINGEMENT.
True copyright THEFT occurs when the original author effectively loses their copyright to another party. An example of THEFT would be if you make an original video game and sell it, some one else comes along, realizes it's pretty popular and makes a near duplicate of the game. They then apply for some trademarks and patents then turn around and sue the original developer for infringement on "their" game while making millions on their ripoff. I'll let you think about that while I go over here crushin' some candies.
This is why it's important to keep it fucking clear the difference between infringement - where someone ignores your monopoly of distribution rights but otherwise doesn't prevent you from using your copyright, and when someone takes your shit and leaves you with nothing but lawsuits and legal fees.
Infringement is what the regular populace does. Theft is what the business world does.
You don't have to outright rob someone of everything in order to be stealing.
Even a partial infringement of copyright steals from their monopoly of it.
A monopoly is one of the few things where it's stealing even if you share it, because a monopoly by definition means exclusivity.
"You don't have to outright rob someone of everything in order to be stealing."
Indeed you don't.
However, you DO need to take something from them and walk off with it, otherwise it's not stealing.
"Even a partial infringement of copyright steals from their monopoly of it."
No it doesn't because the "thief" doesn't have the monopoly. If THEY don't have it, then they didn't steal it.
"A monopoly is one of the few things where it's stealing even if you share it"
No it isn't. It's one of those things you CAN'T steal. Like happiness or health.
I think the next law we should pass, in fact the next law that every country should pass is to make it illegal to negotiate any international agreement in secret. Also I believe this law should make any international treaty or agreement that results from secret negotiations should automatically be null and void, or at the very least automatically subject to referendum, with a 3 month lead up period and that failure to approve should automatically trigger national elections.
Jumpstart the tartan drive.
You can't steal imaginary property.
Fortunately, the U.S. has more aircraft carriers than any foreign copyright holder.
You declare the value of the song, any value you want. $1000 is fine, $1 million is fine, $1 billion is fine. The amount is publicly posted on the copyright office's web site. Every year, you pay 2% of the amount you declared. So if you said $1000 you have to pay $20/year, and if you said $1B, you have to pay $20M/year. Also since you have said your declared amount is the total monetary value of the song, anyone who wants to do so can write you a check for the full amount ($1K or $1B or whatever) and the song goes into the public domain immediately.
Similar things have been done in transport and horse racing. Historically if you wanted to sail a cargo vessel through a waterway (canal etc), you'd have to pay a toll based on the cargo value. The customs guys didn't have the resources to inspect all the cargos, so you might be transporting millions of $ worth of gold bars, but declare that it was $100 worth of horse manure. The trick was that if someone thought something was up, they would say "ok, here's your $100, I now own your cargo" and get your gold bars, leading you to not underdeclare the cargo value. Of course you could also do the reverse, overdeclare saying "it's $500 worth of lumber" while trying to make people think it was gold bars, when it was really horse manure.
There were/are similarly "claims races" in horse racing, sort of a handicapping system. A $10,000 claims race is a normal horse race that people bet on, except to enter your horse in the race, you had to also offer it for sale to anyone for $10K, so you'd only do that if you thought the horse was worth say $9K. Anyone who wanted to do so could then put in a "claim" at the ticket office before the race started, buying the horse for $10K. That meant you wouldn't put a fancy thoroughbred into a low-value race with the idea of scooping up betting money. You normally also wouldn't put in a very slow horse with no chance of winning, since the entry costs would exceed any bets you might collect. But of course there were lots of psych-out maneuvers where someone would put in a good horse with a hidden injury in the hope of getting it claimed, or else they'd pretend to be trying to do that, etc.
In 1957 the U.S. Supreme court ruled in the case of "Reid vs Covert" that Treaty does not trasfer any power that was not already provided in Constitution.
In other words, any provisions in the treaty that is in direct conflict with the Constitution, those treaty provisions are null and void within the United States. In this case, a person cannot be denied life limb or property until they have had due process of law. Any attempt to block web sites, or material without that process, then the parties involved in blocking it, including government agencies, may be subject to a military response, which would be completely legal in those circumstances.
I wonder to what extent phrasing a copyright registration requirement as a property tax would allow circumventing the Berne Convention's prohibition on formalities. It worked for the Affordable Care Act's individual shared responsibility mandate.
Then overdeclare for the first couple years. Declare a living wage plus other costs of producing the work. Once a work proves its value or lack thereof, you can correct your declaration in subsequent years, and if it does get bought out, at least the proceeds from the buyout will fund your next work.
Copyright would be a personal right of the creator of work, held by that person alone and expiring with the creator.
God help you if a hitman is cheaper than what you ask for a license.
Eight minutes of silent era sight gags with a synchronized sound track. What he wants is the use of the trademarked character designs for the Mouse, Minnie, Pete and the rest.
Said trademarks will probably cease to be distinctive once copyright in the original Mickey trilogy (Plane Crazy, The Gallopin' Gaucho, and Steamboat Willie) expires, which under present law is due to happen in 2024. The Supreme Court of the United States in Dastar v. Fox ruled that a trademark cannot be used as an ersatz copyright.
Even with hyperinflation, it still costs the prevailing wage for a document preparer to file the renewal forms on a copyright owner's behalf.
I don't see your post as flamebait, a little naive, maybe, but how do you expect to pay for protection of your freedom?
I don't have points and wouldn't have downvoted you, but it is rather simplistic to think that all the modern things you enjoy are somehow without cost.
e.g. it's not theft to pay property taxes if those property taxes pay for your ability to drive to your property, enjoy protection on your property should it be targeted by criminals or should catch fire,. to say nothing of the education of you and the people around you to enable you to have money to make and do those things in the first place.
... can point to a verified and official copy of the text, articles about the TPP are speculation at best and fearmongering at worst.
The sad thing is that I suspect this language is present in the treaty at our (the U.S.'s) request. We want other countries to respect our copyrights so we insist their laws be stronger, even when we are starting to realize our own laws are too strict. One would be tempted to think this is aimed at China, except they're not a participant in the treaty. It would be much better if trade treaties were limited to simply stating that "Trade between our countries shall be free and unrestricted." That might put a lot of lawyers out of work but it would be much easier to negotiate and have a lot fewer unintended consequences.
Smile, it makes people wonder what you're up to.
And even if you perform an exhaustive search for the owner of that $100 bill/orphaned work, come up with nothing, and spend the money/use the work, the real owner can step forward after the fact and demand reparations. Even worse, they might not be the real owner and only a lengthy and expensive lawsuit might prove it one way or the other.
My sci-fi novel, Ghost Thief, is now available from Amazon.com.
Have they not also ruled that the Congressional scheme of passing copyright extensions every 20 years is absolutely fine?
In its opinion in Eldred v. Ashcroft , the Supreme Court recognized this possibility of circumventing "for limited Times" in the copyright clause but that the plaintiff had not established a pattern of "legislative misbehavior". Congress has enacted only two substantial copyright term extensions since World War I (in 1976 and 1998), and a third extension in the coming decade may establish "legislative misbehavior" more clearly.
But the root of the problem is movie studios' in-kind donation of campaign publicity through their co-owned news outlets. Now let me go donate to the Lessig campaign.
From the tpp wiki page
The stated goal of the agreement is to "enhance trade and investment among the TPP partner countries, to promote innovation, economic growth and development, and to support the creation and retention of jobs."[2]
and how does this do that?
Seems more like somebody has another axe to grind to the detriment of the tpp.
The really sad thing is that this seems to be business as usual.
I guess it is not new. After all, throw the bums out seems a long tradition with humans and govt.