No, copyrights, like patents, are negative rights. That is, it a right to exclude others from doing certain thing (which is why they're called 'exclusive rights'). Copyright does not include a right to do things, e.g. a right to make or distribute copies. Consider a person who writes libelous book or takes photos that constitute child porn. No one is arguing that they don't have a copyright if their works are creative enough, etc. But they still don't have a right to engage in those activities.
This is just clearer with patents, since the situation often arises where one patent blocks the exercise of another. For example, I can patent an improvement upon your patented invention, but without your permission, I can't actually do anything with it. And without my permission, neither can you. This doesn't occur with copyrights, mainly due to a different position on unauthorized derivative works.
The rough equivalent in property law would be a negative easement. Normal easements are rights to do things on other people's land (e.g. cross over it to get to your own land). Negative easements are rights to prevent the owner from doing things on his own land (e.g. keeping him from building a structure of a height that blocks the light recieved by others).
I agree absolutely. If a musician is willing to agree to a lawful contract, who are we to prevent him from doing so because we think it's a bad deal. The only people we normally protect from their own mistakes in this manner are children, and I object to treating musicians or other artists like children.
Let's establish a rule of conduct: If you make it a point to attack and publicly castigate developers who don't follow the GNU license, you should NOT attack RIAA for protecting their own IP rights, or for publicly discussing options for doing so.
Why? You seem to be overlooking the possibility that a/. poster might support copyrights if the rights were limited in such a way that effectively mirrored the GPL, but opposes broader copyrights, such as the system we are presently burdened with.
Thus one could have a consistant position that people who violate the GPL are in the wrong and that P2P sharing of RIAA music is perfectly fine.
No, fair use is based on the Folsom v. Marsh case in 1841. It directly contradicts the statutory law, and was not recognized by Congress until 1976. It has to have a constitutional origin, since it can't possibly be a mere interpretation of the prior statutes.
Isn't it considered "fair use" to record a broadcast for personal use?
Sometimes it is. Depends on the circumstances.
Nor is it any different then hooking up a radio to a tape recorder and recording favorite music.
Well, no one would bother conducting a fair use analysis for that. It's non-actionable, which preempts the need for a fair use defense.
I sure hope they don't start pushing Congress to put DRM chips in every audio recording device out there
Well, this process started in the early 90's. There's a reason why people use computers to rip and burn CDs and interface with mp3 players, rather than using standalone devices. Minidisc, DAT, Audio CDR -- they're all crippled by the law the record industry got passed. They didn't foresee mp3 players (or at least didn't write the law properly with regard to those) and we've been lucky in the one court case to ban (or cripple) those.
For digital submission of digital works, it can approach free.
A token fee is still useful for the weeding out process. Besides, the PTO uses electronic filings very heavily, and it really hasn't meant much with regard to fees. They're not entirely meant as a way to cover costs.
So, you are basically saying no copyright except registered copyright. Deposit and pay a fee. Do you happen to know when such a system was last in place in the US?
1977. Formalities were further reduced with laws in 1989 and 1998. So the current system is still pretty recent, honestly.
Yes, but not quite. We don't necessarily want to get into providing a disincentive to publish either.
How could it be? If your desire is to create art for art's sake, and you don't care about money, then a copyright will not incentivize you, and lack of a copyright will not disincentivize you. There are plenty of motives for people to create works. Copyright only deals with money. For example, your posts in this thread are copyrighted. Would you have not posted them if they would be public domain (unless you registered them, paid the fee, etc.)? Seems doubtful to me. So if you were going to do it anyway, why should I give you a reward?
The Internet Archive will store your digital stuff "forever" at no cost to you. How much defraying is needed in the case of digital documents?
You'd be surprised. Aside from the costs of administering it, storage, a bulletproof backup system, a highly usable data-retrival system (the PTO tries really hard, but they're not that great, IMO) and bandwidth? Document formats die out over time. It's a pain in the ass to migrate them. In a hundred years, do you expect that people will have a copy of WinXP to run Flash on? Paper books and other similar media are more practical over long periods of time. I would avoid letting best copies be electronic copies, particularly if not in highly standardized formats. They're a pain in the ass to preserve.
My point is, why does it only ever seem to work in one direction?
Chiefly because harmonization is seen as a way to force the US and other countries to enact laws (so as to comply with treaty obligations) that they would not want to enact if they were merely proposed normally. The people behind this are wholly uninterested in good copyright law, only expansive copyright law.
Would it not be possible to have a copyright in one, copyright in all plan which still only actually gives the differing protections contemplated in point one?
No, I don't think so. For example, I like the fact that much of the collection of the Library of Congress was acquired through copyright formalities (authors had to give the Library copies of their books in order to get a copyright). If we automatically gave someone a copyright for no better reason than that they got one somewhere else, this sort of thing wouldn't work.
Better for an author to have to consider each country on its own terms.
I don't think you got the gist of the question. Please notice the "instead of." I was not asking about honest objections to both.
You're basically saying that if an author doesn't provide notice, that they should get some rights of copyright, but not all of them. I don't think that it's sensible to give them any rights if they cannot comply with formalities, and I would require more formalities, frankly. I'm really not that interested in partial steps. I prefer to work out an agenda, and try to get that. Maybe we fall short of it, but at least we aren't content with an insufficient amount of reform, and can pull compromises in our direction.
That being said, those formalaties can get to be expensive and thus favour the big boys over the little guys. Putting the poor man's work in the public domain because he cannot afford the money to register or the legal advice to register properly only to allow the big players to adapt it and copyright that with not compensation to the poor fellow may not be the best plan.
Now, if there was simple and free digital registration possible, things may be different.
Ha! Right now, there is a $30 fee, you deposit a copy or two of the work in question, and put a copyright notice on your work. Compare that to federal trademarks (around $300 and up) or patents (which can easily run into the thousands, just to begin).
Formalities wouldn't be expensive for copyright and they've never been complicated. But it can't be free. Remember that the purpose of the fee is to weed out authors who would have created their work anyway, even if no copyright had been available. Since we didn't need to give them the incentive of copyright, we shouldn't give them a copyright, provided we can identify them. The fee also defrays the operating costs of the Copyright Office, in that it costs money to process the filing, store the deposited materials, etc.
If you're so poor that you can't afford a modest fee, and you don't expect that the work you've created will make enough money to take the risk, then you ought to be serious and not bother trying to get a copyright. Copyright is an economic right. It should be thought of in dollars and cents terms, and treated as a business decision. If necessary, raise capital. But don't be fuzzy headed or romantic.
Find a country to pass a better law and all the rest will have to harmonize. (Wishful thinking, but why not?)
Meh. Honestly, I think that it's silly to try to make copyright laws uniform worldwide. Each country ought to do what's best for its own people. Their differing circumstances will dictate different legal systems. Some countries will feel best-served by granting more copyrights, both for its own citizens and unilaterally for foreigners. Others will find it in their best interests to protect works only a little, or not at all. Since there is no single answer that's best for everyone, this is perfectly fine.
I would only hope that two principles are held in common. First, national treatment, which ensures that foreigners are treated the same as a country's own nationals. Second, that countries avoid having copyright systems which so conflict with the systems of other countries that it is impossible for an author to get a copyright in both. Other than that, I couldn't care less what sort of copyright laws other countries have. I'm only interested in ensuring that the US has good laws.
Still, what honest objections exist for automatic copyleft instead of all rights reserved in the case of no notice being affixed?
Because if an author cannot even take the trouble to affix notice to a work, or comply with other formalities (such as registration and deposit, which I view as being of great importance), then why should we take the trouble to give them any rights whatsoever? Formalities are an excellent mechanism for sorting out which authors are serious, and therefore were likely incentivized by copyright, and which authors are not. Since copyright is only ever appropriate as a means to incentivize authors so as to serve the overall public interest (which is quite distinct from the interests of authors), we're being frugal, as it were, by only granting copyrights when we must.
Therefore, for works that are copyrightable but where formalities have not been observed, even a fairly minimal copyright such as you suggest would be too much to bear.
Actually it's the various industries that work in these fields that are the main problem. They want the benefit of artificial monopolies to improve, enhance, and deny to others their positions in the market.
There are plenty of lawyers who don't like harmonization and who don't like the extremes that we're now burdened with.
Well, I doubt that such a design would be simple, so of course it would be patentable.
Complexity is not a requirement for patentability. To be patentable, an invention must be novel (i.e. never before made), nonobvious (i.e. it must not have been an obvious extension of prior inventions to a person having ordinary skill in the art), and useful (i.e. it must actually do something). There are lots of patented simple inventions, however.
Besides, patented or not, AFAIK, you can still legally reproduce it exactly for personnal use.
That is not true. There is no personal use exception for patents.
How can property law apply to something that isn't property? After all, you yourself say that the work contained on the CD is unownable. Is something nobody own "property"?
You're making some mistakes there. Here are a few quick points on the various things involved:
A work is an intangible creative work, such as a story or a song. A copyright is a right pertaining to a work, and which has a limited lifespan. And a copy is a tangible object in which a work is fixed.
These things are clearly seperate. If you burn a song to five different CDs, then there is still only one work: the song. There are five copies of the work: the CDs. And there is only one copyright.
A song is not property because it doesn't meet the ordinary requirements for property. While it can be enjoyed, it cannot be lent and recovered, and cannot be disposed of. It is precisely because of the non-ownable nature of creative works that copyright law was created. Copyright attempts to simulate what it would be like if someone could own a song, no matter how many copies that song existed in simultaneously.
The creator of the song is the author. However, people other than the author might have put the song onto the CDs. And the government grants the copyright.
When the copyright expires, the song, and the copies, still exist. Destroy any particular copy, and the song still exists. Destroy even the song (by destroying all copies) and the copyright, for whatever good it'll do you, still exists until the term expires.
The copyright prevents people from doing certain things with regard to the song, such as publicly performing it. In the absence of a copyright, there is no limit, save that you naturally need a copy of the song at some point in order to do things with it; that is, you can't make copies if you have no master copy to start from and have never heard it.
Since a copyright is a negative right (i.e. a right to prevent other people from doing things, not a right to do them yourself) the expiration of copyright does not grant the public new rights; it merely removes an obstacle that was in their way. This is similar to how, before pilot's licenses were required to fly planes, anyone could, and how if the legal requirement to be licensed was removed, anyone could again.
The closest parallel I can think of would be someone leaving something on your land, or renting out a part of your house. Those are examples of situations where you own the container, but not necessarily the content. Neither of those situations is a simple application of property law
Well, those are simple, actually. Let's just say that Alice has a container, and Bob puts an object into the container. Alice owns the container, and Bob owns the Box. Alice may have given Bob permission to put the object in the container, and may have bound herself (by leasing the volume of the container) to allowing him to keep stuff in there for a period of time. Or Bob may be trespassing, in which case Alice can sue him for putting something in the container, and can require him to remove it.
The trick in our situation is that a record company sells the copy (in this case a CD, acting as our container) and does not own the music within. No one owns the music within; it's unownable, and not property. However, the record company does still have a right to keep people from doing certain thi
Software and firmware, sculptural or pictoral hood ornaments and other insignia or designs seperable from any useful elements. Patents and trademarks are the dominant forms of protection for car parts and designs, but there are some copyrightable elements in there.
You can't pass them off as genuine Ford parts, but you can still make them. If the part is simple enough, the process of making it will be unpatentable, and you could even sell these generic parts.
Yes, but you cannot make a perfect copy of a Ford, because it has to be blank-label. And simplicity doesn't make a part unpatentable. Rather parts -- and the processes used to make the parts or which the parts perform -- may be patentable. You can make a perfectly good car using public domain technologies, sure. But if someone invents, oh, a car wheel that cannot be booted, or a Mr. Fusion, then you can't use that same invention. This results in a non-identical car.
This right doesn't stem from copyright because copyright has nothing to do with it. copyright is about the rights to distribute copies of a work.
That's what I said, although n.b. that copyright includes a number of other rights. Distribution is only one of them.
I'd like to see a legal text that states that the right stems from ownership of the media, I've never heard anyone other than the media companies make such a formal claim. I don't think anyone's ever established from where that right stems (other than de facto from the transfer of money from you to them) because up until now, no one has really had a worthwhile reason to.
It's just a simple application of the law of personal property. For example, let's say that there is a car parked on the street. Who has the right to drive it? The manufacturer, because they made it? No. Anyone passing by? No. Only the owner, or people the owner authorizes, may use the car.
The same holds true of a CD. The person who owns it can put it in a player and listen to it. The copyright holder made it, and at one time owned it, but he's sold it off and has lost the right to play it. He did not sell, however, his rights pertaining to the work as defined in copyright law, and thus can still control things such as public performances or making copies.
Don't let copyright law lead you astray. A CD is no different for the purpose of determining who may play it than a car is for who may drive it or a can opener is for who can open cans with it.
I think duplication for personnal media transfer and backup purposes should be a legal right.
And the only thing stopping you is that while ownership of a CD is sufficient to give you a right to do so, copyright can step in and block you. When the copyright expires, you're no longer blocked, and can exercise previously-dormant rights you had already. This is because copyright is not a right to do something, it is a right to exclude others from doing things. That's why the law refers to the rights of copyright as exclusive rights.
The situation is more clear in the patent field. For example, Alice might invent a new kind of window cleaning fluid. She can patent the formula that comprises the fluid, the process that produces that formula, and the method of using it to clean windows, assuming she meets the various requirements for patentability. Then Bob can come along and invent a method for using it to cure cancer, and patent that. Alice's patent excludes Bob from actually being able to practice his invention. He cannot make more fluid without infringing, you see. Bob's patent excludes Alice from actually being able to practice Bob's invention, as would be expected; she can still do windows, but she can't save lives. The idea is that they eventually come to an agreement since the junior invention is beneficial to both of them.
Anyhow, I basically agree with you that copyright should be reduced in scope so that some things which are infringements now would not be any longer. However,
You see, when you buy a car, you didn't pay for the right to move around in a vehicle, you paid for the car, and you own it entirely, all of it's parts and subcomponents are yours forever, to do as you please, including duplication.
Well, barring copyrights, patents, and trademarks pertaining to various parts of the car. For example, if you build a Ford from scratch, you can't actually put the Ford logo or name on it, because it is not made by Ford, no matter how identical it is.
Anyway, even though you own property, ownership doesn't include a right to break the law. This holds true whether the property is a car or a CD. What laws you could break in relation to a particular piece of property will vary (it's tough to break the speed limit with a plot of land) but this variation doesn't amount for much.
A CD is different, you paid for the right to listen to the music contained within, that's undeniable. There's no way that you paid that price just for a plastic disc containing a thin metal film full of tiny holes.
Sort of, but you've got it a little backwards. The right to listen to the music within stems from the ownership of the plastic disc. Copyright does not include a right to listen to the music -- such a right can only possibly stem from owning the copy.
Now, the big question is: "Does this distinction make your right eternal, do they owe you replacement media and media transfers for life?" The answer, AFAIK, is that nobedy knows for sure, and that it's sure to change from jurisdiction to jurisdiction.
Seriously, yes, the answer is absolutely known for sure, and it is 'no.' Buying a CD does not involve any obligation from the manufacturer (other than normal warranties) that continue on into the future. And this is true throughout the US and pretty certainly the world. No one other than people on/. and similar boards even thinks otherwise.
"A Musician who just spins tracks together". That's a musician? Wow. So, they "sample" parts of songs, and mix them all together. Seems like we need to reclassify them as a "mixer" rather than a musician. I think putting these people in with musicians is belittling to musicians. Seriously.
So do you also think that collage is not a form of art, merely because it involves a visual artist taking elements of other works and combining them into something else? What about work like Lichtenstein's paintings of comic book panels, or Warhol's paintings of ordinary objects (e.g. cans of soup)?
So, if you apply the idea of a patent in the business world to the music world, you can see where the problems are. A musical idea is something that a person can claim to own. So, if a "mixer" comes in and samples more than a certian amount (like 5 seconds I think), they are essentially stepping on the musician's "patent".
This is remarkably wrong in many ways. Music is copyrightable, but not patentable, due to a lack of utility. Ideas are unownable against the world, and are not the subject matter of patents, or copyrights, or any other form of legal right. And AFAIK there is no concept of de minimis patent infringement.
That's not a good analogy, because with the insurance you promise to PAY in exchange for the payout if you die that way. With the GPL, you don't have to do anything.
The insurance example is meant only to illustrate that a contract may exist even where the obligation to perform under the contract is conditional. Don't read too much into it.
The insurer enters into a contract under which it will only have a duty to perform if a condition arises. In the case of the GPL, the licensee assumes an obligation to do something, but only if a particular condition arises. In both cases, it is possible that the condition will never arise. Nevertheless, that doesn't impede contract formation.
The fact that you CANNOT distribute an unauthorized derived work IS a requirement of copyright law.
Which is why violations of the GPL are both breach of contract and copyright infringement. You seem to be the only one here who thinks that the GPL's contractual nature would preclude a cause of action for copyrigt infringement. I'm saying that a GPL licensor/copyright holder can go after violators for both.
The **AA's insist that we've purchased the license to whatever media we buy, not the content itself.
Actually, I've never seen them make that claim. The only people who seem to believe this are people on the Internet who are so used to the inherently silly idea of software EULAs that they think everything works like that.
In fact, when you buy a CD or a DVD from the store there is virtually never a license at all. You own the copy, the copyright holder owns the copyright, and no one owns the work, because works are unownable (which is why we've created copyright to begin with -- to simulate owning works). It's just like a car: so long as you don't break the law, you can do whatever you want with the car. With a car, you're not allowed to speed or violate emissions laws or run people down. With a CD, the law prohibits things like making more copies. Just because the car or copy becomes obsolete doesn't entitle you to a replacement.
Licenses for consumers are quite unusual, and really not necessary. Why the software industry continues to waste time with them is beyond me, and anyone I've put the question to. I think it's just inertia. Fortunately, the practice has been pretty contained. Hopefully it can one day be eliminated, save for situations where licenses are actually useful.
He may CHOOSE to distribute or not distribute the work.
Yes, I know that, and I've been saying this. However if he does distribute, then his obligation kicks in. Distribution -- which is his option -- is just a condition, just like the earlier example of the life insurance that only pays out if you die in a certain way.
The only "promise" is to not distribute a derived work you don't have permission for
That's not really correct. The promise is that if he distributes a modified work that he will also distribute the modifications. The latter distribution is not a requirement of copyright law.
The fee was just an example of one type of agreement; there's no agreement necessary and no obligation.
A fee is never an agreement. The idea doesn't even make sense. Rather, money paid by one party to the other might be part of the objective of one party (e.g. I'd rather sell my house for money than for something else) and can be the consideration required for contract formation. But it's not necessary for either of those things. A binding promise can be sufficient for both purposes.
For example, we could be trading houses. I promise to deed you mine, and you promise to deed me yours. The date of the swap isn't for another month (which is why we're promising, instead of just doing it) but the promises are binding and we are obligated to fulfill our ends of the deal when the time comes.
precludes the possibility of there being an "agreement" because there is no means of negotiating terms, or monitoring or enforcing said agreement
Contracts can be formed sans negotiation. Many contracts are offered on a take-it-or-leave-it basis. So the GPL is arguably adhesive (although no one is stopping you from negotiating an alternative) -- that still doesn't stop it from being a contract.
Monitoring procedures would be nice, but again, not necessary for a contract to exist. Enforcement is perfectly available by going to court. I mean, how do you think contracts are normally enforced?
Even if you decide to distribute binaries with only an OFFER of source code, that is a promise made to the recipient of the work, not to the author.
You're conflating parties to contracts with beneficiaries of those contracts. If I make a contract for life insurance, the insurer isn't promising to give me a penny. Instead, the money goes to whomever I designate, even though that person has no other involvement at all.
The promise of the GPL licensee is that he will distribute or offer to distribute, the appropriate materials, under the appropriate terms, if certain conditions arise. Maybe they never will. But he is still obligated to fulfill his promise if it happens.
Again, you don't HAVE to distribute your derived work in any way.
Provided that the conditions that require that (or an offer to do so) don't arise. Still not an impedement to a contract. Another insurance contract example: I could get a life insurance policy that only covers against death by plane crash. If I never die by plane crash, the insurer never pays out. But they are still obligated to pay the beneficiary if I die in the appropriate manner. They can't argue that there is no contract because whether or not they had to take action was conditional, or because the person who benefits is not me.
If it were a contract, then you might have to give a fee or something to the FSF
Contract formation does not require a fee. The assumption of an obligation is sufficient.
as it stands, you don't even have to contact them to tell them you're distributing the program.
Also not necessary.
You CAN distribute them, if they are accompanied by source code (or an offer to provide it).
I.e. the first party promises to license a right to do things if the second party promises to do so only under the conditions set in the GPL. It's an ordinary exchange of promises.
The GPL doesn't require you to do anything, it merely allows you to do some things you normally can't do because of copyright. It doesn't care whether you agree or not.
So you're saying that I can modify source from a GPL'ed project without being required to release my version when I distribute my binaries? I think it's quite clear that the GPL does require people to do things when they meet the conditions specified in the agreement.
From the linked article: The reason that matters is because if it's a contract, then you enforce it under contract law, which is enforced state by state, and there are certain necessary elements to qualify as a valid contract. If it's a license, then it's enforced under copyright law, and that's enforced on the federal level according to the terms of copyright law, not contract law.
There's your Hitler. The author wrongly assumes that you can't pursue a GPL violation under multiple causes of action. The GPL is a contract pertaining to a license. Breach the contract and you infringe the copyright to boot, because of the way they're tied together.
Okay, Sherlock, if it's a bilateral contract, where do I sign it? What, nowhere? Sorry, NOT a contract then.
Who ever said that you have to sign a contract for it to be valid? Hell, you can even have oral contracts -- no writing or signatures there. You need to read up on the necessary elements for contract formation.
If you don't abide by the terms (which you are not required to do, and there is no mechanism for ensuring your agreement) then it is COPYRIGHT LAW which binds you, not GPL.
No, if you distribute a GPL'ed work improperly, then you are infringing a copyright and breaching a contract. (unless you argue that you never agreed to the GPL, which may or may not be true, depending on circumstances)
I hate to pull rank here, but I am a copyright lawyer, and I do write licenses and other agreements for a living. I know what I'm talking about.
Wow, now that's a silly post. The GPL is clearly a bilateral contract, in which part of the subject matter is a license as to a copyrighted work.
The name people put on these things really doesn't mean much; the substantive nature of the thing is what's key. Or to put it another way, if it looks like a duck, swims like a duck, and quacks like a duck, it's a duck.
I did a cursory search of the Constitution and could not find the "inaliable rights" thing, but I hear about it all the time. Is that an urban legend or misquoted or misattributed to the Bill of Rights?
You're probably thinking of the Declaration of Independence, which has a passage that reads: We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.
"Good" laws are more on the non-specific side, and bad ones add too specific information that will only be trumped when something similar comes up but not specific enough
It often depends on what you're trying to accomplish. In any event, I don't have a problem with the federal constitution being as open to interpretation as it is.
The Constitution mentions "Certain Inaliable Rights", which is fairly and intentionally vague. Its in the Bill of Rights somewhere.
No, it doesn't. You're probably thinking of the 9th Amendment, but that reads: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
I believe that the privacy is implied by the forgotten warrant and illegal search and seizure, not forcing US citizens to house troops, etc.
Sounds like you find a right of privacy in the penumbra of the Bill of Rights. I agree with you, not that I think that there's any reason to feel that there is only one right answer. BTW, you do know that the indented portion of the earlier post was a direct quote of Roe v. Wade, and not my own words, right?
Unless I am a harm to someone or myself as defined by a law and the law is followed by due process, then privacy is implied. (YAIMNAL).
FYI, there are two kinds of due process, procedural (which is the kind you're likely thinking of there) and substantive. Procedural due process requires that if the government takes action that impairs your life, liberty, or property, they have to go about it the right way, e.g. by going to court. Substantive due process requires that the government cannot take such action unless it has a sufficiently strong reason for doing so, as compared to the strength of your right to life, liberty, or property. For example, they can't execute you for jaywalking, because the government doesn't have a sufficiently strong interest in deterring jaywalking to outweigh your right to live. OTOH, they could probably ticket you and prohibit jaywalking, because your interests then are considerably less.
Ok, so you're using Stratagem 18, by not responding to the substance of my post (which showed that the 9th Amendment was considered in Roe by more than one court, and that even if there were agreement that a right to privacy existed under the 9th Amendment, that it would still be a 14th Amendment issue) and instead posting a non sequitur.
Would it have killed you to make an effort? You didn't even criticize the form of my post while dodging the subject.
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No, copyrights, like patents, are negative rights. That is, it a right to exclude others from doing certain thing (which is why they're called 'exclusive rights'). Copyright does not include a right to do things, e.g. a right to make or distribute copies. Consider a person who writes libelous book or takes photos that constitute child porn. No one is arguing that they don't have a copyright if their works are creative enough, etc. But they still don't have a right to engage in those activities.
This is just clearer with patents, since the situation often arises where one patent blocks the exercise of another. For example, I can patent an improvement upon your patented invention, but without your permission, I can't actually do anything with it. And without my permission, neither can you. This doesn't occur with copyrights, mainly due to a different position on unauthorized derivative works.
The rough equivalent in property law would be a negative easement. Normal easements are rights to do things on other people's land (e.g. cross over it to get to your own land). Negative easements are rights to prevent the owner from doing things on his own land (e.g. keeping him from building a structure of a height that blocks the light recieved by others).
I agree absolutely. If a musician is willing to agree to a lawful contract, who are we to prevent him from doing so because we think it's a bad deal. The only people we normally protect from their own mistakes in this manner are children, and I object to treating musicians or other artists like children.
Let's establish a rule of conduct: If you make it a point to attack and publicly castigate developers who don't follow the GNU license, you should NOT attack RIAA for protecting their own IP rights, or for publicly discussing options for doing so.
/. poster might support copyrights if the rights were limited in such a way that effectively mirrored the GPL, but opposes broader copyrights, such as the system we are presently burdened with.
Why? You seem to be overlooking the possibility that a
Thus one could have a consistant position that people who violate the GPL are in the wrong and that P2P sharing of RIAA music is perfectly fine.
No, fair use is based on the Folsom v. Marsh case in 1841. It directly contradicts the statutory law, and was not recognized by Congress until 1976. It has to have a constitutional origin, since it can't possibly be a mere interpretation of the prior statutes.
Isn't it considered "fair use" to record a broadcast for personal use?
Sometimes it is. Depends on the circumstances.
Nor is it any different then hooking up a radio to a tape recorder and recording favorite music.
Well, no one would bother conducting a fair use analysis for that. It's non-actionable, which preempts the need for a fair use defense.
I sure hope they don't start pushing Congress to put DRM chips in every audio recording device out there
Well, this process started in the early 90's. There's a reason why people use computers to rip and burn CDs and interface with mp3 players, rather than using standalone devices. Minidisc, DAT, Audio CDR -- they're all crippled by the law the record industry got passed. They didn't foresee mp3 players (or at least didn't write the law properly with regard to those) and we've been lucky in the one court case to ban (or cripple) those.
For digital submission of digital works, it can approach free.
A token fee is still useful for the weeding out process. Besides, the PTO uses electronic filings very heavily, and it really hasn't meant much with regard to fees. They're not entirely meant as a way to cover costs.
So, you are basically saying no copyright except registered copyright. Deposit and pay a fee. Do you happen to know when such a system was last in place in the US?
1977. Formalities were further reduced with laws in 1989 and 1998. So the current system is still pretty recent, honestly.
Yes, but not quite. We don't necessarily want to get into providing a disincentive to publish either.
How could it be? If your desire is to create art for art's sake, and you don't care about money, then a copyright will not incentivize you, and lack of a copyright will not disincentivize you. There are plenty of motives for people to create works. Copyright only deals with money. For example, your posts in this thread are copyrighted. Would you have not posted them if they would be public domain (unless you registered them, paid the fee, etc.)? Seems doubtful to me. So if you were going to do it anyway, why should I give you a reward?
The Internet Archive will store your digital stuff "forever" at no cost to you. How much defraying is needed in the case of digital documents?
You'd be surprised. Aside from the costs of administering it, storage, a bulletproof backup system, a highly usable data-retrival system (the PTO tries really hard, but they're not that great, IMO) and bandwidth? Document formats die out over time. It's a pain in the ass to migrate them. In a hundred years, do you expect that people will have a copy of WinXP to run Flash on? Paper books and other similar media are more practical over long periods of time. I would avoid letting best copies be electronic copies, particularly if not in highly standardized formats. They're a pain in the ass to preserve.
My point is, why does it only ever seem to work in one direction?
Chiefly because harmonization is seen as a way to force the US and other countries to enact laws (so as to comply with treaty obligations) that they would not want to enact if they were merely proposed normally. The people behind this are wholly uninterested in good copyright law, only expansive copyright law.
Would it not be possible to have a copyright in one, copyright in all plan which still only actually gives the differing protections contemplated in point one?
No, I don't think so. For example, I like the fact that much of the collection of the Library of Congress was acquired through copyright formalities (authors had to give the Library copies of their books in order to get a copyright). If we automatically gave someone a copyright for no better reason than that they got one somewhere else, this sort of thing wouldn't work.
Better for an author to have to consider each country on its own terms.
I don't think you got the gist of the question. Please notice the "instead of." I was not asking about honest objections to both.
You're basically saying that if an author doesn't provide notice, that they should get some rights of copyright, but not all of them. I don't think that it's sensible to give them any rights if they cannot comply with formalities, and I would require more formalities, frankly. I'm really not that interested in partial steps. I prefer to work out an agenda, and try to get that. Maybe we fall short of it, but at least we aren't content with an insufficient amount of reform, and can pull compromises in our direction.
That being said, those formalaties can get to be expensive and thus favour the big boys over the little guys. Putting the poor man's work in the public domain because he cannot afford the money to register or the legal advice to register properly only to allow the big players to adapt it and copyright that with not compensation to the poor fellow may not be the best plan.
Now, if there was simple and free digital registration possible, things may be different.
Ha! Right now, there is a $30 fee, you deposit a copy or two of the work in question, and put a copyright notice on your work. Compare that to federal trademarks (around $300 and up) or patents (which can easily run into the thousands, just to begin).
Formalities wouldn't be expensive for copyright and they've never been complicated. But it can't be free. Remember that the purpose of the fee is to weed out authors who would have created their work anyway, even if no copyright had been available. Since we didn't need to give them the incentive of copyright, we shouldn't give them a copyright, provided we can identify them. The fee also defrays the operating costs of the Copyright Office, in that it costs money to process the filing, store the deposited materials, etc.
If you're so poor that you can't afford a modest fee, and you don't expect that the work you've created will make enough money to take the risk, then you ought to be serious and not bother trying to get a copyright. Copyright is an economic right. It should be thought of in dollars and cents terms, and treated as a business decision. If necessary, raise capital. But don't be fuzzy headed or romantic.
What if we harmonize backwards?
Find a country to pass a better law and all the rest will have to harmonize. (Wishful thinking, but why not?)
Meh. Honestly, I think that it's silly to try to make copyright laws uniform worldwide. Each country ought to do what's best for its own people. Their differing circumstances will dictate different legal systems. Some countries will feel best-served by granting more copyrights, both for its own citizens and unilaterally for foreigners. Others will find it in their best interests to protect works only a little, or not at all. Since there is no single answer that's best for everyone, this is perfectly fine.
I would only hope that two principles are held in common. First, national treatment, which ensures that foreigners are treated the same as a country's own nationals. Second, that countries avoid having copyright systems which so conflict with the systems of other countries that it is impossible for an author to get a copyright in both. Other than that, I couldn't care less what sort of copyright laws other countries have. I'm only interested in ensuring that the US has good laws.
Still, what honest objections exist for automatic copyleft instead of all rights reserved in the case of no notice being affixed?
Because if an author cannot even take the trouble to affix notice to a work, or comply with other formalities (such as registration and deposit, which I view as being of great importance), then why should we take the trouble to give them any rights whatsoever? Formalities are an excellent mechanism for sorting out which authors are serious, and therefore were likely incentivized by copyright, and which authors are not. Since copyright is only ever appropriate as a means to incentivize authors so as to serve the overall public interest (which is quite distinct from the interests of authors), we're being frugal, as it were, by only granting copyrights when we must.
Therefore, for works that are copyrightable but where formalities have not been observed, even a fairly minimal copyright such as you suggest would be too much to bear.
Actually it's the various industries that work in these fields that are the main problem. They want the benefit of artificial monopolies to improve, enhance, and deny to others their positions in the market.
There are plenty of lawyers who don't like harmonization and who don't like the extremes that we're now burdened with.
Well, I doubt that such a design would be simple, so of course it would be patentable.
Complexity is not a requirement for patentability. To be patentable, an invention must be novel (i.e. never before made), nonobvious (i.e. it must not have been an obvious extension of prior inventions to a person having ordinary skill in the art), and useful (i.e. it must actually do something). There are lots of patented simple inventions, however.
Besides, patented or not, AFAIK, you can still legally reproduce it exactly for personnal use.
That is not true. There is no personal use exception for patents.
How can property law apply to something that isn't property? After all, you yourself say that the work contained on the CD is unownable. Is something nobody own "property"?
You're making some mistakes there. Here are a few quick points on the various things involved:
A work is an intangible creative work, such as a story or a song. A copyright is a right pertaining to a work, and which has a limited lifespan. And a copy is a tangible object in which a work is fixed.
These things are clearly seperate. If you burn a song to five different CDs, then there is still only one work: the song. There are five copies of the work: the CDs. And there is only one copyright.
A song is not property because it doesn't meet the ordinary requirements for property. While it can be enjoyed, it cannot be lent and recovered, and cannot be disposed of. It is precisely because of the non-ownable nature of creative works that copyright law was created. Copyright attempts to simulate what it would be like if someone could own a song, no matter how many copies that song existed in simultaneously.
The creator of the song is the author. However, people other than the author might have put the song onto the CDs. And the government grants the copyright.
When the copyright expires, the song, and the copies, still exist. Destroy any particular copy, and the song still exists. Destroy even the song (by destroying all copies) and the copyright, for whatever good it'll do you, still exists until the term expires.
The copyright prevents people from doing certain things with regard to the song, such as publicly performing it. In the absence of a copyright, there is no limit, save that you naturally need a copy of the song at some point in order to do things with it; that is, you can't make copies if you have no master copy to start from and have never heard it.
Since a copyright is a negative right (i.e. a right to prevent other people from doing things, not a right to do them yourself) the expiration of copyright does not grant the public new rights; it merely removes an obstacle that was in their way. This is similar to how, before pilot's licenses were required to fly planes, anyone could, and how if the legal requirement to be licensed was removed, anyone could again.
The closest parallel I can think of would be someone leaving something on your land, or renting out a part of your house. Those are examples of situations where you own the container, but not necessarily the content. Neither of those situations is a simple application of property law
Well, those are simple, actually. Let's just say that Alice has a container, and Bob puts an object into the container. Alice owns the container, and Bob owns the Box. Alice may have given Bob permission to put the object in the container, and may have bound herself (by leasing the volume of the container) to allowing him to keep stuff in there for a period of time. Or Bob may be trespassing, in which case Alice can sue him for putting something in the container, and can require him to remove it.
The trick in our situation is that a record company sells the copy (in this case a CD, acting as our container) and does not own the music within. No one owns the music within; it's unownable, and not property. However, the record company does still have a right to keep people from doing certain thi
Copyrights on parts of a car?!?
Software and firmware, sculptural or pictoral hood ornaments and other insignia or designs seperable from any useful elements. Patents and trademarks are the dominant forms of protection for car parts and designs, but there are some copyrightable elements in there.
You can't pass them off as genuine Ford parts, but you can still make them. If the part is simple enough, the process of making it will be unpatentable, and you could even sell these generic parts.
Yes, but you cannot make a perfect copy of a Ford, because it has to be blank-label. And simplicity doesn't make a part unpatentable. Rather parts -- and the processes used to make the parts or which the parts perform -- may be patentable. You can make a perfectly good car using public domain technologies, sure. But if someone invents, oh, a car wheel that cannot be booted, or a Mr. Fusion, then you can't use that same invention. This results in a non-identical car.
This right doesn't stem from copyright because copyright has nothing to do with it. copyright is about the rights to distribute copies of a work.
That's what I said, although n.b. that copyright includes a number of other rights. Distribution is only one of them.
I'd like to see a legal text that states that the right stems from ownership of the media, I've never heard anyone other than the media companies make such a formal claim. I don't think anyone's ever established from where that right stems (other than de facto from the transfer of money from you to them) because up until now, no one has really had a worthwhile reason to.
It's just a simple application of the law of personal property. For example, let's say that there is a car parked on the street. Who has the right to drive it? The manufacturer, because they made it? No. Anyone passing by? No. Only the owner, or people the owner authorizes, may use the car.
The same holds true of a CD. The person who owns it can put it in a player and listen to it. The copyright holder made it, and at one time owned it, but he's sold it off and has lost the right to play it. He did not sell, however, his rights pertaining to the work as defined in copyright law, and thus can still control things such as public performances or making copies.
Don't let copyright law lead you astray. A CD is no different for the purpose of determining who may play it than a car is for who may drive it or a can opener is for who can open cans with it.
I think duplication for personnal media transfer and backup purposes should be a legal right.
And the only thing stopping you is that while ownership of a CD is sufficient to give you a right to do so, copyright can step in and block you. When the copyright expires, you're no longer blocked, and can exercise previously-dormant rights you had already. This is because copyright is not a right to do something, it is a right to exclude others from doing things. That's why the law refers to the rights of copyright as exclusive rights.
The situation is more clear in the patent field. For example, Alice might invent a new kind of window cleaning fluid. She can patent the formula that comprises the fluid, the process that produces that formula, and the method of using it to clean windows, assuming she meets the various requirements for patentability. Then Bob can come along and invent a method for using it to cure cancer, and patent that. Alice's patent excludes Bob from actually being able to practice his invention. He cannot make more fluid without infringing, you see. Bob's patent excludes Alice from actually being able to practice Bob's invention, as would be expected; she can still do windows, but she can't save lives. The idea is that they eventually come to an agreement since the junior invention is beneficial to both of them.
Anyhow, I basically agree with you that copyright should be reduced in scope so that some things which are infringements now would not be any longer. However,
You see, when you buy a car, you didn't pay for the right to move around in a vehicle, you paid for the car, and you own it entirely, all of it's parts and subcomponents are yours forever, to do as you please, including duplication.
/. and similar boards even thinks otherwise.
Well, barring copyrights, patents, and trademarks pertaining to various parts of the car. For example, if you build a Ford from scratch, you can't actually put the Ford logo or name on it, because it is not made by Ford, no matter how identical it is.
Anyway, even though you own property, ownership doesn't include a right to break the law. This holds true whether the property is a car or a CD. What laws you could break in relation to a particular piece of property will vary (it's tough to break the speed limit with a plot of land) but this variation doesn't amount for much.
A CD is different, you paid for the right to listen to the music contained within, that's undeniable. There's no way that you paid that price just for a plastic disc containing a thin metal film full of tiny holes.
Sort of, but you've got it a little backwards. The right to listen to the music within stems from the ownership of the plastic disc. Copyright does not include a right to listen to the music -- such a right can only possibly stem from owning the copy.
Now, the big question is: "Does this distinction make your right eternal, do they owe you replacement media and media transfers for life?" The answer, AFAIK, is that nobedy knows for sure, and that it's sure to change from jurisdiction to jurisdiction.
Seriously, yes, the answer is absolutely known for sure, and it is 'no.' Buying a CD does not involve any obligation from the manufacturer (other than normal warranties) that continue on into the future. And this is true throughout the US and pretty certainly the world. No one other than people on
"A Musician who just spins tracks together". That's a musician? Wow. So, they "sample" parts of songs, and mix them all together. Seems like we need to reclassify them as a "mixer" rather than a musician. I think putting these people in with musicians is belittling to musicians. Seriously.
So do you also think that collage is not a form of art, merely because it involves a visual artist taking elements of other works and combining them into something else? What about work like Lichtenstein's paintings of comic book panels, or Warhol's paintings of ordinary objects (e.g. cans of soup)?
So, if you apply the idea of a patent in the business world to the music world, you can see where the problems are. A musical idea is something that a person can claim to own. So, if a "mixer" comes in and samples more than a certian amount (like 5 seconds I think), they are essentially stepping on the musician's "patent".
This is remarkably wrong in many ways. Music is copyrightable, but not patentable, due to a lack of utility. Ideas are unownable against the world, and are not the subject matter of patents, or copyrights, or any other form of legal right. And AFAIK there is no concept of de minimis patent infringement.
That's not a good analogy, because with the insurance you promise to PAY in exchange for the payout if you die that way. With the GPL, you don't have to do anything.
The insurance example is meant only to illustrate that a contract may exist even where the obligation to perform under the contract is conditional. Don't read too much into it.
The insurer enters into a contract under which it will only have a duty to perform if a condition arises. In the case of the GPL, the licensee assumes an obligation to do something, but only if a particular condition arises. In both cases, it is possible that the condition will never arise. Nevertheless, that doesn't impede contract formation.
The fact that you CANNOT distribute an unauthorized derived work IS a requirement of copyright law.
Which is why violations of the GPL are both breach of contract and copyright infringement. You seem to be the only one here who thinks that the GPL's contractual nature would preclude a cause of action for copyrigt infringement. I'm saying that a GPL licensor/copyright holder can go after violators for both.
The **AA's insist that we've purchased the license to whatever media we buy, not the content itself.
Actually, I've never seen them make that claim. The only people who seem to believe this are people on the Internet who are so used to the inherently silly idea of software EULAs that they think everything works like that.
In fact, when you buy a CD or a DVD from the store there is virtually never a license at all. You own the copy, the copyright holder owns the copyright, and no one owns the work, because works are unownable (which is why we've created copyright to begin with -- to simulate owning works). It's just like a car: so long as you don't break the law, you can do whatever you want with the car. With a car, you're not allowed to speed or violate emissions laws or run people down. With a CD, the law prohibits things like making more copies. Just because the car or copy becomes obsolete doesn't entitle you to a replacement.
Licenses for consumers are quite unusual, and really not necessary. Why the software industry continues to waste time with them is beyond me, and anyone I've put the question to. I think it's just inertia. Fortunately, the practice has been pretty contained. Hopefully it can one day be eliminated, save for situations where licenses are actually useful.
He may CHOOSE to distribute or not distribute the work.
Yes, I know that, and I've been saying this. However if he does distribute, then his obligation kicks in. Distribution -- which is his option -- is just a condition, just like the earlier example of the life insurance that only pays out if you die in a certain way.
The only "promise" is to not distribute a derived work you don't have permission for
That's not really correct. The promise is that if he distributes a modified work that he will also distribute the modifications. The latter distribution is not a requirement of copyright law.
The fee was just an example of one type of agreement; there's no agreement necessary and no obligation.
A fee is never an agreement. The idea doesn't even make sense. Rather, money paid by one party to the other might be part of the objective of one party (e.g. I'd rather sell my house for money than for something else) and can be the consideration required for contract formation. But it's not necessary for either of those things. A binding promise can be sufficient for both purposes.
For example, we could be trading houses. I promise to deed you mine, and you promise to deed me yours. The date of the swap isn't for another month (which is why we're promising, instead of just doing it) but the promises are binding and we are obligated to fulfill our ends of the deal when the time comes.
precludes the possibility of there being an "agreement" because there is no means of negotiating terms, or monitoring or enforcing said agreement
Contracts can be formed sans negotiation. Many contracts are offered on a take-it-or-leave-it basis. So the GPL is arguably adhesive (although no one is stopping you from negotiating an alternative) -- that still doesn't stop it from being a contract.
Monitoring procedures would be nice, but again, not necessary for a contract to exist. Enforcement is perfectly available by going to court. I mean, how do you think contracts are normally enforced?
Even if you decide to distribute binaries with only an OFFER of source code, that is a promise made to the recipient of the work, not to the author.
You're conflating parties to contracts with beneficiaries of those contracts. If I make a contract for life insurance, the insurer isn't promising to give me a penny. Instead, the money goes to whomever I designate, even though that person has no other involvement at all.
The promise of the GPL licensee is that he will distribute or offer to distribute, the appropriate materials, under the appropriate terms, if certain conditions arise. Maybe they never will. But he is still obligated to fulfill his promise if it happens.
Again, you don't HAVE to distribute your derived work in any way.
Provided that the conditions that require that (or an offer to do so) don't arise. Still not an impedement to a contract. Another insurance contract example: I could get a life insurance policy that only covers against death by plane crash. If I never die by plane crash, the insurer never pays out. But they are still obligated to pay the beneficiary if I die in the appropriate manner. They can't argue that there is no contract because whether or not they had to take action was conditional, or because the person who benefits is not me.
If it were a contract, then you might have to give a fee or something to the FSF
Contract formation does not require a fee. The assumption of an obligation is sufficient.
as it stands, you don't even have to contact them to tell them you're distributing the program.
Also not necessary.
You CAN distribute them, if they are accompanied by source code (or an offer to provide it).
I.e. the first party promises to license a right to do things if the second party promises to do so only under the conditions set in the GPL. It's an ordinary exchange of promises.
The GPL doesn't require you to do anything, it merely allows you to do some things you normally can't do because of copyright. It doesn't care whether you agree or not.
So you're saying that I can modify source from a GPL'ed project without being required to release my version when I distribute my binaries? I think it's quite clear that the GPL does require people to do things when they meet the conditions specified in the agreement.
From the linked article:
The reason that matters is because if it's a contract, then you enforce it under contract law, which is enforced state by state, and there are certain necessary elements to qualify as a valid contract. If it's a license, then it's enforced under copyright law, and that's enforced on the federal level according to the terms of copyright law, not contract law.
There's your Hitler. The author wrongly assumes that you can't pursue a GPL violation under multiple causes of action. The GPL is a contract pertaining to a license. Breach the contract and you infringe the copyright to boot, because of the way they're tied together.
Okay, Sherlock, if it's a bilateral contract, where do I sign it? What, nowhere? Sorry, NOT a contract then.
Who ever said that you have to sign a contract for it to be valid? Hell, you can even have oral contracts -- no writing or signatures there. You need to read up on the necessary elements for contract formation.
If you don't abide by the terms (which you are not required to do, and there is no mechanism for ensuring your agreement) then it is COPYRIGHT LAW which binds you, not GPL.
No, if you distribute a GPL'ed work improperly, then you are infringing a copyright and breaching a contract. (unless you argue that you never agreed to the GPL, which may or may not be true, depending on circumstances)
I hate to pull rank here, but I am a copyright lawyer, and I do write licenses and other agreements for a living. I know what I'm talking about.
Wow, now that's a silly post. The GPL is clearly a bilateral contract, in which part of the subject matter is a license as to a copyrighted work.
The name people put on these things really doesn't mean much; the substantive nature of the thing is what's key. Or to put it another way, if it looks like a duck, swims like a duck, and quacks like a duck, it's a duck.
I did a cursory search of the Constitution and could not find the "inaliable rights" thing, but I hear about it all the time. Is that an urban legend or misquoted or misattributed to the Bill of Rights?
You're probably thinking of the Declaration of Independence, which has a passage that reads: We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.
"Good" laws are more on the non-specific side, and bad ones add too specific information that will only be trumped when something similar comes up but not specific enough
It often depends on what you're trying to accomplish. In any event, I don't have a problem with the federal constitution being as open to interpretation as it is.
The Constitution mentions "Certain Inaliable Rights", which is fairly and intentionally vague. Its in the Bill of Rights somewhere.
No, it doesn't. You're probably thinking of the 9th Amendment, but that reads: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
I believe that the privacy is implied by the forgotten warrant and illegal search and seizure, not forcing US citizens to house troops, etc.
Sounds like you find a right of privacy in the penumbra of the Bill of Rights. I agree with you, not that I think that there's any reason to feel that there is only one right answer. BTW, you do know that the indented portion of the earlier post was a direct quote of Roe v. Wade, and not my own words, right?
Unless I am a harm to someone or myself as defined by a law and the law is followed by due process, then privacy is implied. (YAIMNAL).
FYI, there are two kinds of due process, procedural (which is the kind you're likely thinking of there) and substantive. Procedural due process requires that if the government takes action that impairs your life, liberty, or property, they have to go about it the right way, e.g. by going to court. Substantive due process requires that the government cannot take such action unless it has a sufficiently strong reason for doing so, as compared to the strength of your right to life, liberty, or property. For example, they can't execute you for jaywalking, because the government doesn't have a sufficiently strong interest in deterring jaywalking to outweigh your right to live. OTOH, they could probably ticket you and prohibit jaywalking, because your interests then are considerably less.
Also, what is YAIMNAL?
Additionally, it's possible to waive the right to a jury and have the judge act as a factfinder as well.
Ok, so you're using Stratagem 18, by not responding to the substance of my post (which showed that the 9th Amendment was considered in Roe by more than one court, and that even if there were agreement that a right to privacy existed under the 9th Amendment, that it would still be a 14th Amendment issue) and instead posting a non sequitur.
Would it have killed you to make an effort? You didn't even criticize the form of my post while dodging the subject.