First, copyright is available to any author even where formalities are present. All they need to do is apply for it. If it's not worth a comparatively trivial effort and sum to the author, then plainly it's not worth protecting in the first place.
If he's not interested in seeking protection, then why should he get it? I'm not asking for tremendous effort. But I am asking for him to make the minor exertions of registering so that the public is informed as to the existence of the work and the copyright, depositing copies with the Library of Congress so that the work will always be available, and providing notice so that people are aware of what works are and are not copyrighted. This is not even vaguely hard or costly. But it does seperate the wheat from the chaff.
A modicum of limited, temporary protection for works which are not mature enough to have been published or registered is acceptable. We don't want people pirating manuscripts, after all, but it should be quite limited indeed so that the majority of unregistered works are in the public domain as befits them.
As for patents, you seem to not be familiar with the American system. A mere idea will not get you a patent. You need a novel, nonobvious invention which has been reduced to practice. Ideas are cheap. Patentable inventions are not. Plus, only the first inventor is eligible for a patent, regardless of whether he's the first to apply for it. Later inventors are mere johnny-come-latelies and get nothing.
Well, authors are a subset of the people, but you're missing the other half of the main issue, I think.
Merely encouraging creation is not enough to benefit the public. The public has two equal interests, and creation is only one of them. You have to satisfy the other one maximally as well: placing works in the public domain as rapidly as possible.
After all, the public is best off when all the works that could be created are, and when they are all free in both the beer and speech senses. We might not have that happy ideal, but we can try to approach it in its entirety.
So it's okay for artists to not be as fully incentivized by copyright as they might be, by limiting what they get from a copyright, if it still results in a lot of works getting created and more rapidly entering the public domain than they would if we foolishly obeyed authors' every wish.
It's a bad idea to try to uncouple these dual public interests. You have to try to fulfill both equally.
As for Britany Spears, yes, we benefit. Copyright is not about artistic merit, which is basically subjective anyway. It's about increasing human knowledge, preserving it, and letting that knowledge do all the good it's capable of.
The purpose of copyright is to maximally benefit the public. This is done by causing as many original and derivative works to be created as possible and then to enter the public domain as rapidly as possible. Note that the creation and public domain requirements have affects on the other. Maximizing either alone is probably a bad idea.
The disposition of authors is irrelevant on its own terms -- we're only interested in them to the extent that we're trying to wring works out of them as efficiently as possible.
Kind of like how a farmer might coerce a donkey into doing useful labor by dangling a carrot in front of him. The donkey would prefer to do no work and eat all carrots. The farmer is the boss though, and wants the most work for the least carrots. He's willing to invest a little, but not so much that the donkey is no longer worth it. Authors are basically working animals.
The main problem with your post is that you are hopelessly optimistic. The vast, vast, vast majority of works created have no economic value whatsoever that derives from their copyright. The fraction of a percent of works left has some.
For that fraction, the vast, vast, vast majority of those works with any copyright-derived value at all will see all that value realized almost immediately. Basically, this second majority is just a first-to-market advantage. For example, 90% of the profit of a book will be made within the first three months or so after its initial release. This is because virtually everyone that wants it will want it asap. Even if there were no copyright law, since it would take time for competing publishers to gear up for their own printing and distribution, the first one would get well rewarded. A copyright during this first bit of time just helps. It doesn't mean that one is needed forever.
Only the teeniest, tiniest number of works has long term (i.e. over 1 year) substantial economic viability.
Authors that are in favor of long term copyrights because they think they'll actually make enough money from them to support their family during their life, and even after their death, are probably better off playing the lottery.
Frankly, if you're worried about this, don't fucking pass long copyright laws. Pass social welfare laws, and encourage people to get life insurance policies. Not only are they far more reliable (unlike the magic beans you essentially propose) but you don't have to be an author in order to take advantage of them! Everyone can do it.
Your thing is just silly. IIRC, in criticizing the lengthening of US terms from life+50 to life+70 (or 75 to 95 / 100 to 120, depending on other factors), Justice Breyer pointed out that the economic value of those extra 20 years to authors was on average 5 cents.
Copyright for long spans of time is really only useful for making authors that are likely already rich even richer. Their families -- if they have any -- are already well taken care of. The authors that are worried about their families are not going to be helped by this.
In order to get the rights to make a movie of the material while it's still copyrighted, the film studio might agree to pay royalties to the author's estate forever - in which case they don't benefit from the author's death.
Well, it's been held that a similar arrangement for patent royalties is unlawful, since it tries to be equivalent to an unlimited duration patent. I don't recall a copyright case to the same effect, but the argument wouldn't be hard to make. Royalties basically stop at the end of the term.
All that said, I'm not sure that "5 years after author's death" is the best choice. Just because you create a creative work doesn't guarantee you profits for life. You want income, you need to keep producing. How about 20 years from the date of publication? I think that's pretty generous.
I agree, but I think there should be more granularity. After all, some works are only of commercial viability very briefly, while others could use a longer span of time.
So I think copyright should last 5 years from publication (where publication is more broadly defined than it is now), and be renewable four times. Renewing it would have to occur in the final year of the preceeding term, and increasing fees would accompany it, so that people wouldn't sit on works merely to deprive the public domain of them, but only bother to keep within copyright those works that they felt would be profitable to them. By requiring formalities to get a copyright to begin with, we also avoid the idiotic 1976 policy of copyrighting every stupid little thing automatically. Most things would be p.d., and copyright would be reserved for things where it was important to the author to seek it. This closely approximates granting copyrights only to works where it is necessary to get them to be created in the first place, since it's wasteful protection if not needed for the work to've been created. We might bar renewal terms for short-lived works such as software. Later versions might get their own derivative (or full-fledged, if a total rewrite) copyrights, but since most software doesn't remain viable for long, and since we want the public domain to have works useful to the public, and not just junk, this seems reasonable.
Yeah he is: Your comparison is lame, because TOS had a lot of good scripts during the first two seasons. They didn't start to falter until the third and final season, when most of the best writers and producers had left.
It's especially clear given that he refers to 'the third and final season.' Star Trek only had three seasons, so the third was the final one. Enterprise had four seasons.
No, he's talking about the original Star Trek series from the '60s. And he's right -- it started out fairly good, but the third season wasn't all that great, e.g. Abraham Lincoln flying through space.
With regards to the trust system you describe, there is already some research along those lines with regards to defeating file spoofing.
IIRC, the idea is that a file must either be spoofed or not. If Alice reports accurately as to which are and which are not, then you'd trust her ratings. If Bob reports inaccurately (i.e. claiming that spoofed files are not spoofed) then not only can you ignore him, you may even be able to assume that he always lies, which can provide useful information.
You could make multiple users, to avoid building up a bad history, but this would mean that you'd also fail to build up a good history, and if people only trust ratings from people with a good history, this might not be practical.
Similarly, you could try to make an attack by only lying sometimes, but since you're still mostly providing good information, you're still generally providing a benefit to other users.
If you poke around, I'm sure you can find a better description of this general idea.
Patents are available for processes, machines, articles of manufacture, or compositions.
So you can patent a chemical as a composition, which covers it no matter how it's used, and also the processes by which you make it, and use it. If you make it with a machine, you can patent that too. If you have a new sort of bottle, you might be able to patent it as an article of manufacture. (Of course in all cases, the inventions would have to meet the regular patentability requirements, e.g. novelty, nonobviousness, etc.)
Oh, you think that patents are exclusive. There's the problem.
They're not.
It's entirely possible for Alice to get a patent on, say, a chemical, which she sells as a drug. If Bob discovers that it also is good for shining shoes, he can get a patent on the method of using it for that.
At this point, Bob can't use his invention, since Alice's dominates it. But he does have a patent, so Alice can't use his method. This forces them to come to an agreement, or for Bob to outwait Alice.
As a copyright and trademark attorney, I am prepared to endorse this idea, provided that my bretheren in the patent field stick to their field, and stay out of copyrights and trademarks.
a more liberal definition of prior art including an "obvious next step" clause
In order to be patentable, inventions must not only be novel, they also have to be nonobvious. So unless you want to further expand what it is to be obvious, we've got this.
That is a very persuasive argument. You make some excellent points. You are why I enjoy slashdot.
I agree completely.
But let's call it what it is - stealing.
And yet, it's not stealing. The law defines the offense in question as infringement, not stealing. The prima facie elements are different. The punishments and remedies are different. The history of the laws are different. Generally, the courts in which the cases are heard are different.
It's not stealing. Just because you perceive a deprivation of something, that doesn't make it stealing. For example, if I burn down your house, you lose it, but I have stolen nothing. The crime I would have committed is arson.
You surely are aware of the proper name of the offense we are discussing. If you're not using it, this implies that you have a purpose for doing so. Basically, you want to get an emotional response from readers. While I don't have a problem with that by and large, it casts a shadow on how reasoned your argument is. You should not need to resort to loaded terms if your point is sound.
So if your argument has legs, it'll still walk just fine if you use the accurate terminology. I for one would appreciate it if you did so, since it is important, IMO, that we approach this subject rationally and dispassionately.
Let's get to your premise: Works must survive, and the only way to do that is by stealing.
That's not my premise.
But let's first back up. Earlier, I said that copyright law and copyright infringement were essentially amoral. I allowed that piracy had some moral dimension to it (in that it is moral for works to survive, and piracy tended to encourage this), but that basically the entire subject was an amoral one.
So my premise is that improving the survivability of works is somewhat moral, though not so greatly so that it adds a material moral factor to amoral copyright.
That is very different than what you took it for.
there is no rule that works must survive
True, but I think that we can agree that it's a good thing for works to survive. If they do, then whatever benefits they can provide may be realized at some point in the future. There is no certainty that they will, but there is a chance. If a work does not survive, then there is absolutely no possibility that it can benefit anyone in the future. And the future is a long time, mind you.
These benefits can be quite unpredictable to boot. Schliemann read the epic poems of Homer and Virgil. His passion for the story of Troy led him to actually discover an ancient lost city in Turkey, yielding archaeological discoveries that have benefitted mankind. If these poems had been lost, he probably would've been a nobody and the city would not have been discovered. It's an unpredictable response to a work, yet it's a real one.
Interestingly, archaeology is full of these sorts of things, because the field is one in which we seek to learn about the past. Egyptian hieroglyphics were only understood after analysis based upon the work written on the Rosetta Stone. The Stone is damaged and incomplete as it is. If it had been damaged further, it's possible that we would not know anything much about ancient Egypt. The work on the Stone is not of significant interest; it's just that it happens to be written in three languages, providing insight into the one of them that was lost. It's not hard to imagine that someone who knew what it said in ancient times might have dismissed it as unimportant and thus allowed something new to be carved in the stone, destroying the previous message.
Likewise, the Mycenaean language Linear B died out long ago, and was only rediscovered and understood thanks to careful study of some documents that turned out to be warehouse inventories. It's not unlike aliens in the far future learning about English from thrown away grocery receipts. Linear A, another ancient Cretan script remains undeciphered. Perhaps it wouldn't be, if the righ
However, the presence of that in the public domain would mean neither more nor less than that people were able to use that footage, and that footage alone, and only insomuch as their use did not infringe on Disney's trademark rights.
This is incorrect. Congress' power to grant copyrights is entirely separate from its power to protect trademarks, as was settled in the 19th century Trade-Mark Cases. A copyright cannot function as a trademark, nor can a trademark function as a copyright. (see the Shredded Wheat case for a similar issue involving trademarks and patents) There have been more recent cases along the same lines, such as IIRC, New Line v. Comedy Three.
If the copyright on Steamboat Willie expires, Disney would no longer have the right to prevent other people from using it, or making derivatives of it (i.e. brand new Mickey Mouse films based on it, not later versions of the character) since those rights are unique to copyright.
It would be unlikely that they would have a strong trademark anymore -- Mickey Mouse would no longer identify a source of goods, but a good itself, which is to say that it would become generic, and thus unprotectable. And even were this not the case, trademark law is basically oriented around avoiding customer confusion -- so long as everyone is clear as to the source of these new works not being Disney, Disney really has no cause to complain.
Personally, I am aware of a situation that would provide a similar situation to clarify things, but it'll be a bit before I'm in a position to pursue it.
The house analogy isn't all that good; instead, let's think of Penicillin.
Fleming famously discovered the antibiotic effect of penicillin mold when some of it contaminated (and killed) a bacterial culture he was working on.
Fortunately for the world, he realized how important this was, cultured the mold, and studied it. If he hadn't done this, it's possible that no one would have, or at least, not until quite a bit later. Thus, Fleming can be thought of as a single point of failure for the public benefit derived from penicillin and later antibiotics.
There are lots of ways in which Fleming might have failed: he might not have understood what he was looking at and ignored it, he might have let the original sample get contaminated with a fungicide, the lab could've caught fire, etc. Any of these happening early enough would've proven fatal to the discovery.
However, if Fleming had a policy of allowing anyone to take samples, and had been able to provide an infinite number of samples (as is the case for works), then he is acting so as to reduce the chances that a single failure will prove fatal. His sample could perish, but other people would have their own, and work could continue.
This is what I mean by piracy improving the survivability of works. Pirates spread works far and wide, reducing the chance that they will eventually be lost forever.
For example, most of the classical works to survive through today survived because copies and copies of copies ended up in places that were isolated or otherwise safe. Libraries and cities, on the other hand, tended to get burned and sacked. Many works were irrevocably lost -- we know of them, but we don't have them themselves.
This is not a phenomenon limited to antiquity. Shakespeare's plays 'Love's Labors Won' and 'Cardenio' are both lost and are only a few hundred years old. Many 19th and 20th century films and television episodes were lost because they were not recorded, were deliberately destroyed or overwritten, or the only copies degraded. It is not unknown for copyright holders to have to ask pirates for copies of these works, because the pirates have the only copies left.
In this way -- making lots of copies of a work so that the loss of any one of them is not so terrible -- piracy increases the survivability of works.
The same basic policy is at work in the manditory deposit requirements in copyright law, and exceptions permitting libraries and archives to make copies to preserve their own.
Paying is not as good for survivability purposes as piracy, since it increases costs, and thus reduces the number of possible works that can be made more secure, since resources are finite. Frankly, it's a stupid suggestion.
And it's not that a song means so much to me that it must survive. The sum of human knowledge and accomplishment means a lot to me -- that's what I want to survive. Any specific work is unlikely to ever have value to anyone beyond the creator, and even then probably not much. Nevertheless, it is impossible to predict what the inhabitants of the future will value (especially since we're talking about countless generations all with differing interests and comprised of billions of people each) and we shouldn't harm them by making an irrevocable decision for them. This is a noble goal, frankly. There are few lovers of knowledge that don't wish to see others like them satisfied.
Re: censorship, the public is being censored.
If a copyright holder relies upon government authority to prevent the public from speaking something -- in this case the same thing the copyright holder originally spoke -- then he is acting to censor them. It could be worse, but it's not all that great, and it should remind us that copyright should be treated with extreme caution, and is not desirable by itself, but only where it can produce an overall positive effect in spite of its inherent defects.
17 USC 101 and 201 are the relevant sections for works made for hire. Together, they indicate that a contract can claim that a work is not a work for hire, and that will be valid. However, a contract cannot state that a work is a work for hire and in that respect be binding, unless certain highly specific requirements are satisfied, which is not vaguely likely for music.
This leaves the employment kind of work for hire, but it's unlikely that your primary artists will be treated as employees, looking at the CCNV v. Reid factors. (Backup musicians might be)
So the answer is that they're likely not in wfh territory.
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No, he is correct in that while it could be extended indefinately, it's required to be finite, and the relevant statute is not.
It's just that if Congress cares, they'll make a minor amendment to cure it, and this defense won't work twice.
Copyright as we know it didn't exist at the time the word 'piracy' adopted the meaning it has for creative works. This means that the works being pirated were all in the public domain. It's just that the pirates didn't pay the author for the manuscript, and probably broke the law, since the Stationer's Guild was in charge of telling printers what they were allowed to print.
Deposit dates back to the Statute of Anne. It's a traditional and vital part of the system. As with patent disclosures, it both helps to put the public on notice, and secures for the public the permanent benefit of the subject matter of the right.
The publication bar is a traditional feature of copyright in the US, and only recently fell by the wayside. We really need it back. And similarly, federal copyright used to not apply to unpublished works essentially, and state laws were fairly limited and basically operated for unpublished works.
So really I'm advocating a somewhat more uniform and policy-centric version of what America has always done, until the idiocy of the 1976 Act.
The reason it sounds rather like patent law is because the basic policy goals of both bodies of law are basically identical, and the implementation very nearly so. The differences basically just arise out of the different subject matter.
Firstly, people who unauthorizedly reproduce works created by other people have been called pirates since the late 17th century, well before copyright law even existed (but during the golden age of the arr matey kind of piracy).
Secondly, while willful infringement for financial gain (which is defined very very broadly) is criminal, so is "the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000," regardless of financial gain.
You should probably read 17 USC 506, 106, and 101.
No, it is the labels that have them under contract as in, "all your stuff is ours if you want published." It is the labels that control who can distribute not the artist. And since the label owns it don't expect that copyright to expire for 95 years.
Only if it were a work for hire, which is actually kind of rare. Normally music copyrights vest in the person who creates the music, and are assigned, which means life + 70 terms, and termination.
Slashdot Mirror
I disagree.
First, copyright is available to any author even where formalities are present. All they need to do is apply for it. If it's not worth a comparatively trivial effort and sum to the author, then plainly it's not worth protecting in the first place.
If he's not interested in seeking protection, then why should he get it? I'm not asking for tremendous effort. But I am asking for him to make the minor exertions of registering so that the public is informed as to the existence of the work and the copyright, depositing copies with the Library of Congress so that the work will always be available, and providing notice so that people are aware of what works are and are not copyrighted. This is not even vaguely hard or costly. But it does seperate the wheat from the chaff.
A modicum of limited, temporary protection for works which are not mature enough to have been published or registered is acceptable. We don't want people pirating manuscripts, after all, but it should be quite limited indeed so that the majority of unregistered works are in the public domain as befits them.
As for patents, you seem to not be familiar with the American system. A mere idea will not get you a patent. You need a novel, nonobvious invention which has been reduced to practice. Ideas are cheap. Patentable inventions are not. Plus, only the first inventor is eligible for a patent, regardless of whether he's the first to apply for it. Later inventors are mere johnny-come-latelies and get nothing.
Well, authors are a subset of the people, but you're missing the other half of the main issue, I think.
Merely encouraging creation is not enough to benefit the public. The public has two equal interests, and creation is only one of them. You have to satisfy the other one maximally as well: placing works in the public domain as rapidly as possible.
After all, the public is best off when all the works that could be created are, and when they are all free in both the beer and speech senses. We might not have that happy ideal, but we can try to approach it in its entirety.
So it's okay for artists to not be as fully incentivized by copyright as they might be, by limiting what they get from a copyright, if it still results in a lot of works getting created and more rapidly entering the public domain than they would if we foolishly obeyed authors' every wish.
It's a bad idea to try to uncouple these dual public interests. You have to try to fulfill both equally.
As for Britany Spears, yes, we benefit. Copyright is not about artistic merit, which is basically subjective anyway. It's about increasing human knowledge, preserving it, and letting that knowledge do all the good it's capable of.
You're both wrong.
The purpose of copyright is to maximally benefit the public. This is done by causing as many original and derivative works to be created as possible and then to enter the public domain as rapidly as possible. Note that the creation and public domain requirements have affects on the other. Maximizing either alone is probably a bad idea.
The disposition of authors is irrelevant on its own terms -- we're only interested in them to the extent that we're trying to wring works out of them as efficiently as possible.
Kind of like how a farmer might coerce a donkey into doing useful labor by dangling a carrot in front of him. The donkey would prefer to do no work and eat all carrots. The farmer is the boss though, and wants the most work for the least carrots. He's willing to invest a little, but not so much that the donkey is no longer worth it. Authors are basically working animals.
The main problem with your post is that you are hopelessly optimistic. The vast, vast, vast majority of works created have no economic value whatsoever that derives from their copyright. The fraction of a percent of works left has some.
For that fraction, the vast, vast, vast majority of those works with any copyright-derived value at all will see all that value realized almost immediately. Basically, this second majority is just a first-to-market advantage. For example, 90% of the profit of a book will be made within the first three months or so after its initial release. This is because virtually everyone that wants it will want it asap. Even if there were no copyright law, since it would take time for competing publishers to gear up for their own printing and distribution, the first one would get well rewarded. A copyright during this first bit of time just helps. It doesn't mean that one is needed forever.
Only the teeniest, tiniest number of works has long term (i.e. over 1 year) substantial economic viability.
Authors that are in favor of long term copyrights because they think they'll actually make enough money from them to support their family during their life, and even after their death, are probably better off playing the lottery.
Frankly, if you're worried about this, don't fucking pass long copyright laws. Pass social welfare laws, and encourage people to get life insurance policies. Not only are they far more reliable (unlike the magic beans you essentially propose) but you don't have to be an author in order to take advantage of them! Everyone can do it.
Your thing is just silly. IIRC, in criticizing the lengthening of US terms from life+50 to life+70 (or 75 to 95 / 100 to 120, depending on other factors), Justice Breyer pointed out that the economic value of those extra 20 years to authors was on average 5 cents.
Copyright for long spans of time is really only useful for making authors that are likely already rich even richer. Their families -- if they have any -- are already well taken care of. The authors that are worried about their families are not going to be helped by this.
In order to get the rights to make a movie of the material while it's still copyrighted, the film studio might agree to pay royalties to the author's estate forever - in which case they don't benefit from the author's death.
Well, it's been held that a similar arrangement for patent royalties is unlawful, since it tries to be equivalent to an unlimited duration patent. I don't recall a copyright case to the same effect, but the argument wouldn't be hard to make. Royalties basically stop at the end of the term.
All that said, I'm not sure that "5 years after author's death" is the best choice. Just because you create a creative work doesn't guarantee you profits for life. You want income, you need to keep producing. How about 20 years from the date of publication? I think that's pretty generous.
I agree, but I think there should be more granularity. After all, some works are only of commercial viability very briefly, while others could use a longer span of time.
So I think copyright should last 5 years from publication (where publication is more broadly defined than it is now), and be renewable four times. Renewing it would have to occur in the final year of the preceeding term, and increasing fees would accompany it, so that people wouldn't sit on works merely to deprive the public domain of them, but only bother to keep within copyright those works that they felt would be profitable to them. By requiring formalities to get a copyright to begin with, we also avoid the idiotic 1976 policy of copyrighting every stupid little thing automatically. Most things would be p.d., and copyright would be reserved for things where it was important to the author to seek it. This closely approximates granting copyrights only to works where it is necessary to get them to be created in the first place, since it's wasteful protection if not needed for the work to've been created. We might bar renewal terms for short-lived works such as software. Later versions might get their own derivative (or full-fledged, if a total rewrite) copyrights, but since most software doesn't remain viable for long, and since we want the public domain to have works useful to the public, and not just junk, this seems reasonable.
Well, you'll make a 1 bit hash of millions, anyway. And it'll probably be 0. ;)
It became a criminal matter in 1897. So I'm not sure what you mean by it not having been a criminal matter for very long.
Still, it is stupid that it is, and I do support making it exclusively civil.
Actually, the Betamax case hit the Supreme Court in 84. But it is possible that the case began in the 70's -- I'd have to check.
Yeah he is: Your comparison is lame, because TOS had a lot of good scripts during the first two seasons. They didn't start to falter until the third and final season, when most of the best writers and producers had left.
It's especially clear given that he refers to 'the third and final season.' Star Trek only had three seasons, so the third was the final one. Enterprise had four seasons.
No, he's talking about the original Star Trek series from the '60s. And he's right -- it started out fairly good, but the third season wasn't all that great, e.g. Abraham Lincoln flying through space.
With regards to the trust system you describe, there is already some research along those lines with regards to defeating file spoofing.
IIRC, the idea is that a file must either be spoofed or not. If Alice reports accurately as to which are and which are not, then you'd trust her ratings. If Bob reports inaccurately (i.e. claiming that spoofed files are not spoofed) then not only can you ignore him, you may even be able to assume that he always lies, which can provide useful information.
You could make multiple users, to avoid building up a bad history, but this would mean that you'd also fail to build up a good history, and if people only trust ratings from people with a good history, this might not be practical.
Similarly, you could try to make an attack by only lying sometimes, but since you're still mostly providing good information, you're still generally providing a benefit to other users.
If you poke around, I'm sure you can find a better description of this general idea.
There has been for a while. Remember how Bush referred to the Internets in the debates last fall?
You can patent chemicals.
Patents are available for processes, machines, articles of manufacture, or compositions.
So you can patent a chemical as a composition, which covers it no matter how it's used, and also the processes by which you make it, and use it. If you make it with a machine, you can patent that too. If you have a new sort of bottle, you might be able to patent it as an article of manufacture. (Of course in all cases, the inventions would have to meet the regular patentability requirements, e.g. novelty, nonobviousness, etc.)
Oh, you think that patents are exclusive. There's the problem.
They're not.
It's entirely possible for Alice to get a patent on, say, a chemical, which she sells as a drug. If Bob discovers that it also is good for shining shoes, he can get a patent on the method of using it for that.
At this point, Bob can't use his invention, since Alice's dominates it. But he does have a patent, so Alice can't use his method. This forces them to come to an agreement, or for Bob to outwait Alice.
As a copyright and trademark attorney, I am prepared to endorse this idea, provided that my bretheren in the patent field stick to their field, and stay out of copyrights and trademarks.
a more liberal definition of prior art including an "obvious next step" clause
In order to be patentable, inventions must not only be novel, they also have to be nonobvious. So unless you want to further expand what it is to be obvious, we've got this.
That is a very persuasive argument. You make some excellent points. You are why I enjoy slashdot.
I agree completely.
But let's call it what it is - stealing.
And yet, it's not stealing. The law defines the offense in question as infringement, not stealing. The prima facie elements are different. The punishments and remedies are different. The history of the laws are different. Generally, the courts in which the cases are heard are different.
It's not stealing. Just because you perceive a deprivation of something, that doesn't make it stealing. For example, if I burn down your house, you lose it, but I have stolen nothing. The crime I would have committed is arson.
You surely are aware of the proper name of the offense we are discussing. If you're not using it, this implies that you have a purpose for doing so. Basically, you want to get an emotional response from readers. While I don't have a problem with that by and large, it casts a shadow on how reasoned your argument is. You should not need to resort to loaded terms if your point is sound.
So if your argument has legs, it'll still walk just fine if you use the accurate terminology. I for one would appreciate it if you did so, since it is important, IMO, that we approach this subject rationally and dispassionately.
Let's get to your premise: Works must survive, and the only way to do that is by stealing.
That's not my premise.
But let's first back up. Earlier, I said that copyright law and copyright infringement were essentially amoral. I allowed that piracy had some moral dimension to it (in that it is moral for works to survive, and piracy tended to encourage this), but that basically the entire subject was an amoral one.
So my premise is that improving the survivability of works is somewhat moral, though not so greatly so that it adds a material moral factor to amoral copyright.
That is very different than what you took it for.
there is no rule that works must survive
True, but I think that we can agree that it's a good thing for works to survive. If they do, then whatever benefits they can provide may be realized at some point in the future. There is no certainty that they will, but there is a chance. If a work does not survive, then there is absolutely no possibility that it can benefit anyone in the future. And the future is a long time, mind you.
These benefits can be quite unpredictable to boot. Schliemann read the epic poems of Homer and Virgil. His passion for the story of Troy led him to actually discover an ancient lost city in Turkey, yielding archaeological discoveries that have benefitted mankind. If these poems had been lost, he probably would've been a nobody and the city would not have been discovered. It's an unpredictable response to a work, yet it's a real one.
Interestingly, archaeology is full of these sorts of things, because the field is one in which we seek to learn about the past. Egyptian hieroglyphics were only understood after analysis based upon the work written on the Rosetta Stone. The Stone is damaged and incomplete as it is. If it had been damaged further, it's possible that we would not know anything much about ancient Egypt. The work on the Stone is not of significant interest; it's just that it happens to be written in three languages, providing insight into the one of them that was lost. It's not hard to imagine that someone who knew what it said in ancient times might have dismissed it as unimportant and thus allowed something new to be carved in the stone, destroying the previous message.
Likewise, the Mycenaean language Linear B died out long ago, and was only rediscovered and understood thanks to careful study of some documents that turned out to be warehouse inventories. It's not unlike aliens in the far future learning about English from thrown away grocery receipts. Linear A, another ancient Cretan script remains undeciphered. Perhaps it wouldn't be, if the righ
However, the presence of that in the public domain would mean neither more nor less than that people were able to use that footage, and that footage alone, and only insomuch as their use did not infringe on Disney's trademark rights.
This is incorrect. Congress' power to grant copyrights is entirely separate from its power to protect trademarks, as was settled in the 19th century Trade-Mark Cases. A copyright cannot function as a trademark, nor can a trademark function as a copyright. (see the Shredded Wheat case for a similar issue involving trademarks and patents) There have been more recent cases along the same lines, such as IIRC, New Line v. Comedy Three.
If the copyright on Steamboat Willie expires, Disney would no longer have the right to prevent other people from using it, or making derivatives of it (i.e. brand new Mickey Mouse films based on it, not later versions of the character) since those rights are unique to copyright.
It would be unlikely that they would have a strong trademark anymore -- Mickey Mouse would no longer identify a source of goods, but a good itself, which is to say that it would become generic, and thus unprotectable. And even were this not the case, trademark law is basically oriented around avoiding customer confusion -- so long as everyone is clear as to the source of these new works not being Disney, Disney really has no cause to complain.
Personally, I am aware of a situation that would provide a similar situation to clarify things, but it'll be a bit before I'm in a position to pursue it.
The house analogy isn't all that good; instead, let's think of Penicillin.
Fleming famously discovered the antibiotic effect of penicillin mold when some of it contaminated (and killed) a bacterial culture he was working on.
Fortunately for the world, he realized how important this was, cultured the mold, and studied it. If he hadn't done this, it's possible that no one would have, or at least, not until quite a bit later. Thus, Fleming can be thought of as a single point of failure for the public benefit derived from penicillin and later antibiotics.
There are lots of ways in which Fleming might have failed: he might not have understood what he was looking at and ignored it, he might have let the original sample get contaminated with a fungicide, the lab could've caught fire, etc. Any of these happening early enough would've proven fatal to the discovery.
However, if Fleming had a policy of allowing anyone to take samples, and had been able to provide an infinite number of samples (as is the case for works), then he is acting so as to reduce the chances that a single failure will prove fatal. His sample could perish, but other people would have their own, and work could continue.
This is what I mean by piracy improving the survivability of works. Pirates spread works far and wide, reducing the chance that they will eventually be lost forever.
For example, most of the classical works to survive through today survived because copies and copies of copies ended up in places that were isolated or otherwise safe. Libraries and cities, on the other hand, tended to get burned and sacked. Many works were irrevocably lost -- we know of them, but we don't have them themselves.
This is not a phenomenon limited to antiquity. Shakespeare's plays 'Love's Labors Won' and 'Cardenio' are both lost and are only a few hundred years old. Many 19th and 20th century films and television episodes were lost because they were not recorded, were deliberately destroyed or overwritten, or the only copies degraded. It is not unknown for copyright holders to have to ask pirates for copies of these works, because the pirates have the only copies left.
In this way -- making lots of copies of a work so that the loss of any one of them is not so terrible -- piracy increases the survivability of works.
The same basic policy is at work in the manditory deposit requirements in copyright law, and exceptions permitting libraries and archives to make copies to preserve their own.
Paying is not as good for survivability purposes as piracy, since it increases costs, and thus reduces the number of possible works that can be made more secure, since resources are finite. Frankly, it's a stupid suggestion.
And it's not that a song means so much to me that it must survive. The sum of human knowledge and accomplishment means a lot to me -- that's what I want to survive. Any specific work is unlikely to ever have value to anyone beyond the creator, and even then probably not much. Nevertheless, it is impossible to predict what the inhabitants of the future will value (especially since we're talking about countless generations all with differing interests and comprised of billions of people each) and we shouldn't harm them by making an irrevocable decision for them. This is a noble goal, frankly. There are few lovers of knowledge that don't wish to see others like them satisfied.
Re: censorship, the public is being censored.
If a copyright holder relies upon government authority to prevent the public from speaking something -- in this case the same thing the copyright holder originally spoke -- then he is acting to censor them. It could be worse, but it's not all that great, and it should remind us that copyright should be treated with extreme caution, and is not desirable by itself, but only where it can produce an overall positive effect in spite of its inherent defects.
A mere contract isn't enough.
17 USC 101 and 201 are the relevant sections for works made for hire. Together, they indicate that a contract can claim that a work is not a work for hire, and that will be valid. However, a contract cannot state that a work is a work for hire and in that respect be binding, unless certain highly specific requirements are satisfied, which is not vaguely likely for music.
This leaves the employment kind of work for hire, but it's unlikely that your primary artists will be treated as employees, looking at the CCNV v. Reid factors. (Backup musicians might be)
So the answer is that they're likely not in wfh territory.
No, he is correct in that while it could be extended indefinately, it's required to be finite, and the relevant statute is not.
It's just that if Congress cares, they'll make a minor amendment to cure it, and this defense won't work twice.
No, it's not. I don't have a better word for it.
Copyright as we know it didn't exist at the time the word 'piracy' adopted the meaning it has for creative works. This means that the works being pirated were all in the public domain. It's just that the pirates didn't pay the author for the manuscript, and probably broke the law, since the Stationer's Guild was in charge of telling printers what they were allowed to print.
Not too much.
Deposit dates back to the Statute of Anne. It's a traditional and vital part of the system. As with patent disclosures, it both helps to put the public on notice, and secures for the public the permanent benefit of the subject matter of the right.
The publication bar is a traditional feature of copyright in the US, and only recently fell by the wayside. We really need it back. And similarly, federal copyright used to not apply to unpublished works essentially, and state laws were fairly limited and basically operated for unpublished works.
So really I'm advocating a somewhat more uniform and policy-centric version of what America has always done, until the idiocy of the 1976 Act.
The reason it sounds rather like patent law is because the basic policy goals of both bodies of law are basically identical, and the implementation very nearly so. The differences basically just arise out of the different subject matter.
That's not true.
Firstly, people who unauthorizedly reproduce works created by other people have been called pirates since the late 17th century, well before copyright law even existed (but during the golden age of the arr matey kind of piracy).
Secondly, while willful infringement for financial gain (which is defined very very broadly) is criminal, so is "the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000," regardless of financial gain.
You should probably read 17 USC 506, 106, and 101.
If I fart on the street corner, you can't tape it and re-distribute it without my explicit permission.
Yes I can.
1) It's arguably not creative, and therefore not copyrightable.
2) It's arguably not a work of authorship, and therefore not copyrightable.
3) It's not fixed in a tangible medium, and therefore not copyrightable. (Unless 1101 applies, which is dubious with regards to facts and the law)
4) Implicit permission is fine even if some form of permission must be had.
No, it is the labels that have them under contract as in, "all your stuff is ours if you want published." It is the labels that control who can distribute not the artist. And since the label owns it don't expect that copyright to expire for 95 years.
Only if it were a work for hire, which is actually kind of rare. Normally music copyrights vest in the person who creates the music, and are assigned, which means life + 70 terms, and termination.