*) This lapse in international law, BTW, is the same one that causes the US all kinds of headaches for terrorists we capture. There really needs to be a new Geneva Convention to address protocol when confronted with non-uniformed belligerents when no state of war exists, including pirates and terrorists.
Well, if we would agree to, and ratify, Protocols I & II to the Geneva Conventions, which we've basically been ignoring since the 70's, it would help a lot with regard to so-called terrorists on battlefields and such. It would also help if we would respect the spirit of the Geneva Conventions and the rule of law generally. It's not a lapse in international law. It's a lapse in our government.
Many other terrorists are just run-of-the-mill criminals (e.g. the 1993 attack on the WTC) and can be dealt with like any other criminal.
Of course, that's nothing to do with pirates; the status of pirates is already fairly well-established in international law, AFAICT. Various countries might not want to have to deal with the headache of trying pirates and imprisoning them, but they certainly can if they want to.
What jurisdiction do those countries you name have?
Pirates are deemed enemies of all humanity; as such, every country has jurisdiction over pirates, though some may be unwilling to exercise it. Check it out.
Oh yeah, and why is the US and other countries using their MILITARY to protect civilian cargo ships?
One of the reasons for a country to have a navy is to maintain that country's free, lawful use of the sea.
It's been called piracy since at least 1668, back when the yo-ho-ho sort of pirates enjoyed their golden age on the seas, when no one viewed piracy romantically at all (unlike nowadays), when the connotations of the word were strong enough that the closest equivalent today would probably be 'terrorism,' and about 50 years before the first copyright law that protected authors came into being.
Given that, I think the ship has sailed, ha ha, on complaining about the use of the word 'piracy' in this way.
(Here's the cite from the OED: 1668 J. HANCOCK Brooks' String of Pearls (Notice at end), Some dishonest Booksellers, called Land-Pirats, who make it their practise to steal Impressions of other mens Copies.)
No, that ceased to be true for US copyrights in 1891; the movie in question came out in 1902. Now, admittedly, it wasn't until 1912, IIRC, that the copyright law expressly covered motion pictures, but as I understand it, prior to then, motion pictures were treated the same as photographs for copyright purposes. Now, if the film was treated as being unpublished, and had not been registered, he might have had problems with state copyright law, but I really don't feel like trying to work out the precise details of getting copyrights in the US or the several states on foreign films prior to the 1909 Act coming into effect. It's just been too damn hot lately.
Using a recording in a personal video and publishing it online is not considered fair use according to law.
I disagree. I think that, depending on the specific circumstances involved, it could be a fair use, though it wouldn't necessarily be.
Would you mind providing specific language indicating that your claim is correct. The statute you linked to just provides a test for determining if a use is fair or not; it doesn't specifically say what you claim it says.
AFAIK there is no fair use exception for copyrighted music.
Sure there is. The statute makes it clear that fair use applies to all copyrighted works. There are no exceptions. You're probably thinking of the de minimis doctrine, i.e. that copyright does not protect taking very small amounts of material from other works. Bridgeport, the most notorious sampling case, dealt with that; it didn't even mention fair use, IIRC. See, OTOH, the Pretty Woman case for an example of the Supreme Court supporting fair use in a music case.
"Fair use" is a legal concept that was hammered out through litigation, not a commonsensical notion of "what is fair."
Well... the concept is basically that if a use is fair, it shouldn't be considered infringing. There are tests to determine if a particular use, based on all the relevant circumstances, is fair, but there are no bright-line rules, and the case-by-case nature of the beast makes precedent shaky. While it's not as bad as some things (e.g. the utility doctrine, which is always a crapshoot), it does largely hinge on whether the judge feels in his gut if it's fair or not.
The big problem with your argument is that you don't have a model for creators to be paid.
First, not all authors need to be paid. For example, no one is paying for you to write posts on Slashdot, which are perfectly valid creative works, and presently protected by copyright; you're choosing to do so yourself. So we could probably abolish copyrights for works where the author would have created and published the work if he couldn't get a copyright. (Lacking the ability to read minds, probably the best way to do this is to require authors to register and pay a nominal fee to get copyrights; authors who don't care probably won't bother, while authors who do care probably will.)
Second, copyright as we know it only dates back to the early 18th century, and didn't become widespread until well into the 19th and 20th centuries. Yet there have been plenty of authors, all around the world, through recorded history. While some of them would've done their work at a loss, it seems likely that there were plenty of them who would only work if they could make a living at it. How then, in the absence of copyright, did they get paid?
Well, there are several means. Authors could have a patron, who pays them to create works that he likes, or could have a collective of patrons, who pays for works that they would collectively like. E.g. if 1,000 hard-core fans of a particular author each chip in $20 for a new work, the author can gross $20,000 right there, plus whatever else he could exploit the work for. Authors could sell specific works, as opposed to mass-reproduced copies of that work, on the basis that not all copies are equal, even if they communicate the work equally. This is how most fine artists make money, even today, with copyrights; an original Van Gogh painting is worth millions, but a postcard of a the same painting is worth almost nothing. Authors can sell their labor, rather than copies of their works, just as many people sell their labor, rather than the fruits of their labor. For example, a wedding party might hire a band to play music.
There are other ways as well; I don't want to get into an exhaustive list.
Personally, I think that a carefully designed copyright system can provide a greater benefit to society than the harm it causes. But copyright only adds one additional means for authors to make money; it doesn't detract from any of the others, and it may not even be the most important or best way of encouraging the creation and publication of art. Certainly it is at best useful, but is not at all necessary.
Eliminating the national post office would require a Constitutional amendment. Delivering the mail is in the U.S. Constitution.
No, Congress is empowered to establish a post office, and post roads, but they are not obligated to do so. The USPS could be eliminated without an amendment, but I hope it wouldn't be.
Except, you forget that it's US politicians cramming these copyright laws down the rest of the world's collective throat, under the guise of protecting US interests. Heck, the *AA's help their equivalent group in various countries lobby the government to get your DMCA passed. So much so, that, they'll just re-use the document in another country.
Well, US government representatives (like the USTR) tend to be involved, but these aren't really politicians; they're bureaucrats. And they tend to act at the behest of big businesses, which are often foreign or multinational these days. The big four record companies (used to be six, before mergers, probably soon to be three), are Japanese, French, American, and British.
But don't think for a minute that it's the rest of the world imposing these treaties and laws on the US.
The rest of the world isn't standing idly by. The US has been under pressure to enter into Berne since its inception, but we held out until the late 1980's. Even if stopped our government's efforts in pushing for stronger copyright, there are minimums that we need to go below which will cause other countries to begin to pressure us. And plenty of other countries have sufficiently strong copyright lobbies that they also support going too far. Look at all the madness in France lately, as usual.
I'm saying that we need to resist all outside pressure, allow the rest of the world to act as freely as we would like to, and then focus on what changes in our domestic law will best serve our own citizenry.
No worries. I think you were misremembering the 1891 amendments to the copyright law.
That law, for the first time, granted copyrights to authors who were not US citizens or residents, provided that the foreign author's country of citizenship offered a similar grant to American authors. One of the provisions of this was that the work had to be deposited no later than the date of first publication anywhere in the world, in order for the work to be copyrightable in the US. This wasn't so unusual; works had to be registered in the US by their American authors no later than the date of first publication in the US in order to be eligible, going as far back as the 1790 Act. But the logistical problems eventually resulted in there being a grace period. IIRC, it was never so long as you remembered it, though.
The 1891 amendments also set up the manufacturing formality; while the US was willing to finally grant foreign authors copyrights, they had no desire to support foreign publishers; works which were subject to mass reproduction (books, photographs, etc.) had to have the copies made within the US, rather than imported from abroad.
As I've said, I support granting national treatment unilaterally. If a British author wants a US copyright, then he can have one, provided that he is willing to go through the same process that an American author has to go through. I do support the revitalization of some formalities (such as publication (more broadly defined than at present), registration, notice, deposit, and renewal -- not manufacturing), and while I'd provide a grace period (mainly to account for works which are first published roughly simultaneously with their creation, like a live TV broadcast), and assistance to foreign and non-English-speaking authors (such as forms in a variety of foreign languages, and reasonable support provided at US embassies and consulates), they would have to jump through all the same hoops.
This isn't meant to discourage foreign authors, or to victimize them; it's just that some formalities actually do serve important public purposes, and those purposes are frustrated if we allow exceptions. Given that US copyrights are economic incentives, more important to authors who treat their business like a business, than those who are willing to create art just for the sake of it, I doubt that authors anywhere in the world who want such a copyright, in such a major market, will have a big problem with filling in some forms, paying some token fees, and dropping some materials in the mail. No one wants a high hurdle, although we do want a small one.
In the past, when the US did not conform to the Berne Convention, it was US law that in order to be copyrighted in the US, a work had to be published in the US within 1 year of being published elsewhere.
I don't recall that. Could you please provide a cite?
Honest question: Why do people seem to accept this argument as valid for oil rigs, but using Chernobyl as a reason against nuclear is (generally, and rightfully) rejected as irrelevant and a piss poor argument?
In practice, I think you'll find that most people regard accidents like Three Mile Island or Chernobyl as good arguments against nuclear power; it may not pose immediate danger in most cases, but when things go wrong, as they inevitably and unpredictably do, from time to time, the results can be disastrous. Which is actually pretty much like the recent realization that oil rigs can also be quite dangerous to their surroundings. So I'd say you're begging the question, comparing the two, and then asserting that the one can't be justly criticized, with the unspoken outcome being that the other ought not to be as well.
But, to answer your (non-)question, Chernobyl is certainly a good argument against reactors of that design. If we're to build more fission plants, then I'd like to see safer designs at least; passively safe, not just more light water reactors. And even then we're still left with a waste problem (especially when you remember that even parts of the reactor itself will be waste when the reactor is decommissioned and disassembled), which is basically inescapable and problematic, no matter what sort of reactor you've got. Frankly, there's good cause to think that nuclear power is generally not worth it. That's not to say that we should build a lot of coal plants, or anything, though. I think we could accomplish a lot by massively building renewable power generation, and by reducing generated power use (e.g. by mandating superinsulation, mandating that all structures that could at least in part have their hot water needs served by solar hot water heaters have them installed, with minimal exceptions for visible parts of historic buildings, urbanizing, de-suburbanizing, etc.). It might not be a comfortable transition, but we'll be better off abandoning our unsustainable, wasteful lifestyle for something stable and yet adequate.
If something else should be done in order to carefully inspect the other wells for problems, and then to make them as safe as possible (with the safest option being to cap the wells and stop oil drilling), then fine. I'm not married to the moratorium or anything; it just appears to be the best option at the moment. Feel free to suggest a better one, if you're such an expert.
They can't possibly have a spouse and children they need to provide for, right? No way, just go ahead and take away their lively hoods in the name of safety all while making things less safe.
I'd rather make things more safe, while arranging different jobs for them. It will take decades of work to get the Gulf anywhere near to the shape it was previously in. Are they so inflexible that they will refuse to take honest work at a decent wage doing clean-up duty, instead of drilling for oil? I doubt it, but if so, then no, I have no use for them.
Actually it's the folks on the Gulf coast who are most concerned about the moratorium, because they're the folks who make their living supplying the rigs that were put under the moratorium.
Oh, I don't know. I'm from the Gulf Coast originally, and everyone I know there is spitting mad about the spill, and would be perfectly happy to see the rigs gone, lest this get worse, or happen again, and the various malefactors severely punished. I don't know anyone opposed to the moratorium. And if oil rig workers would lose their jobs as a result, why not let them get jobs cleaning up the spill, just like the fishermen are having to do.
The oil is already spilled - stopping drilling will not cure that.
But if there is another shoddy oil well being built, this will keep it from causing a spill (really a leak; more is gushing out every moment) that will worsen the current situation. The moratorium is a good idea, at least until we've determined 1) whether we want to permit new wells to be built; 2) whether we want to permit existing wells to remain in operation; 3) whether any of the wells built or under construction are safe.
As for the workers, there is plenty of work to be done cleaning up the current mess, so they need not worry about that, I'm sure.
Well, it's possible to believe in promoting the progress of science (the useful arts are what patents deal with), and also believe that it's alright to engage in otherwise infringing activity if it is engaged in by natural persons, and non-commercially.
Also, the 1790 Act only covered books and maps. So people who staunchly adhere to the 1790 Act can share sound recordings, movies, and video games freely without being hypocritical. I don't think that anyone really believes that strongly in it, though.
Treaties like Berne are intolerable because they impose minimum standards on the parties to the treaty. For example, everyone here who thinks that life + 50 years is too long a term for works is necessarily against Berne, because that's what imposes that figure. No one can grant shorter terms, no matter how reasonable, without either violating Berne or not being a member.
I have no problems whatsoever with national treatment (i.e. treating one's own citizens and foreigners equally) in copyright law. Although I do think that as the rationale of copyright (encouraging the creation and publication of works while minimizing restrictions on the public) doesn't differentiate between authors on the basis of nationality, national treatment should be offered unilaterally. This doesn't mean that foreign authors will necessarily seek out domestic copyrights; there may be formalities that they don't want to comply with. But so long as they're on an equal footing, I see no basis for complaints.
Minimum standards, however, have got to go. They're too one-sided as it is, and too inflexible to deal with changing times. It would be far better for every nation in the world to experiment with copyright as they see fit, so that we can all work to find the best implementations. Though as different countries have different circumstances, it would be foolish to expect them all to act uniformly on this issue. Each should do whatever will best serve their own people, rather than strangers in a faraway land.
We weren't talking about Shakespeare in the park. We were talking about First Amendment vs. Copyright.
What's the difference?
The First Amendment protects me if I want to perform Shakespeare; without that protection, the government might censor me.
Remember, copyright is not a right to publish a work. When an author makes and distributes copies of his own work, he relies on the First Amendment to do so. Copyright is a right granted to an author, by the government, to use the power of the government to censor third parties who make use of the work. When the copyright expires, the power to censor evaporates, resulting in the third parties relying on their First Amendment rights just as the author originally did his.
The result is that the Copyright Clause and the First Amendment are in direct opposition to one another. Now, this might be perfectly tolerable, if copyright law is formulated to serve the public interest, and in fact produces a materially greater benefit to the public than if it didn't exist, preferably the greatest possible public benefit. Then, while we might suffer some restrictions on our rights, at least we're getting something worthwhile out of it, and the restrictions are as minimal and short-lived as possible.
But let's not pretend that they work hand-in-hand, or are generally compatible. There's inescapable tension between them, and in a pinch, we ought to err on the side of free speech than on the side of censorship, however socially useful it might be.
The Constitution does direct Congress to create a copyright law
No, you've misread the Copyright Clause. Don't be too upset, though, a lot of people do that.
The Constitution empowers Congress to enact federal copyright law, but it does not mandate that they do so any more than it mandates that they grant letters of marque and reprisal three clauses later. (Apparently they haven't done so since the 19th century) Congress has the power to enact copyright law, but it can choose whether or not to do so, and has fairly broad latitude as to what the law will consist of. There are requirements in the clause that must be followed if copyrights are granted, but that's it. And of course, more general constitutional requirements apply too (e.g. the 14th Amendment prohibits granting copyrights to authors of one ethnicity, and not another).
it does not state the form or manner of Copyright protection.
Sure it does; The clause requires that copyrights consist of exclusive rights, i.e. rights to exclude. The subject of the right is left open, so there's no requirement that copyright concern itself with the right to make or distribute copies, for example, but whatever it is, the author will have the right to exclude others from engaging in it, as regarding the copyrighted work.
The clause actually provides a number of requirements for the law, if you look over it closely.
So there's no way that an extension of the term of Copyright can be interpreted as a First Amendment issue.
Sure it can. I don't think it's the best approach, but it is a perfectly valid one.
No, copyright at its core is a system to ensure those who spent months writing books didnt get fucked just cause the guy next door has a printing press and could, hypothetically make and sell as many copies as possible.
No, copyright at its core is a system to increase the public benefit: The public benefits when works are created and published that otherwise would not have been, and the public benefits when works are unprotected, so that they can be used most productively (e.g. enjoyed, copied and distributed most widely, used as the basis for derivatives, etc.).
In order to try to increase the first type of benefit, we temporarily reduce the second kind, betting that when the reduction expires, the net public benefit will be greater than if we hadn't meddled. Assuming that this is so (it isn't necessarily so), you then try to determine precisely how little, and how short-lived of a reduction provides the greatest incentive to create and publish, so as to maximize the net public benefit.
But the system doesn't really care whether or not some author or another gets fucked, as you put it. We don't want to lose sight of the overall public benefit and focus on incentives to the exclusion of all else. Even with all of the maximalists running rampant, there are still plenty of ways in which we don't protect an author, because it would be contrary to the public interest to do so.
People claim this is a First Amendment issue, but I can't see how. Free Speech isn't about publishing other people's works; it's about protecting people's right to disagree with the government.
Well that's just completely wrong. You are saying, for example, that if I wanted to stage a performance of Romeo and Juliet, which was wholly apolitical, the government could arbitrarily choose to shut me down, because I am not Shakespeare, and I am not criticizing them? That's absurd.
The First Amendment protects speech, period. Political speech is of particular concern, but it protects artistic speech, commercial speech, etc. just as well. It also protects people when they repeat the speech of someone else, rather than create their own. We temporarily limit that last part with copyright, but the underlying right doesn't discriminate. That's why when copyright expires on a work, there is no affirmative grant to the public to use that work; instead the restriction is lifted, and the previously-dormant free speech right can finally be exercised.
Copyright law is not part of the Constitution, so Congress has every right to change it as they see fit.
Only within Constitutional bounds. And the Constitution does set some limits and requirements on what Congress may do.
First, our treaty obligations do not override the limits on the federal government imposed by the Constitution, either as a matter of law, or, frankly, proper policy. If the political branches enter into a treaty that requires the US to act unconstitutionally, then we will unavoidably have to violate the treaty until we can fix it, or get out of it. If TRIPS requires this, then we cannot comply with TRIPS.
Second, you're assuming that we need to even participate in TRIPS; we don't. The US has a strong enough position that we don't need to enter into any copyright treaties, quite frankly. Our relevant industries are quite capable of dealing with that, just as they dealt with the US not being in Berne until 1989. Our copyright law has become bad enough due to domestic actors, but the 'back door' created by treaty obligations is completely abysmal. It helps to get laws pushed through Congress without debate or the opportunity to amend them, lest we be in violation of yet another foolish treaty.
The US should immediately withdraw from all copyright treaties, amend its copyright law to best serve the domestic interests of all Americans (not merely creators and publishers), should unilaterally offer national treatment to foreign authors, provided their works are published in the US and otherwise comply with the formalities we need to re-establish and strengthen, and should limit its international involvement in copyright matters to informal cooperation with other states to ensure that their copyright laws do not in some way become mutually incompatible with ours (typically due to formalities). In this way, we would not only improve things for ourselves, while not materially harming our own copyright-related industries, but we would be reigning things in, and once again provide guidance to the rest of the world as to how copyright laws can work sensibly. That's something we haven't done a good job of in the 20th and 21st centuries, particularly since we enacted the disasterous 1976 Act.
Posting one copy that everyone can download is NOT fair use.
Didn't you read the earlier poster's comment? There are no bright lines as to what is or is not a fair use; any otherwise infringing use can be fair, it depends on the circumstances.
The library has a physical book: fair use is that one person at a time can hold that book, and can write notes about that book into a notebook; then the physical book can be passed along to someone else for their turn.
Well, the notes might be fair use, but the actual lending part isn't fair use at all; it's distribution, which is dealt with as a part of first sale.
If you think everything should be free, ask yourself: "Why should anyone pay *me*?"
That's not really the issue though. We have copyright in order to encourage the creation and publication of works which otherwise would not be created and published, with the least and shortest-lived restrictions on the public as to those works. It isn't meant to support authors or publishers, but instead to benefit the public. Whatever benefits authors and publishers get is really just a side-effect, and rather in the way of a bribe to get them to do socially-useful things they otherwise wouldn't do.
So in order to decide whether everything should be free, at least for copyright-related things, ask yourself, would society benefit?
You could go further, too, in looking at various different implementations of copyright law (which rights are made exclusive, what exceptions are there to those rights, how long copyrights last, what formalities exist, etc.) and working out which of them benefits society the most. Whatever produces the greatest benefit is, of course, what we ought to do. There's a fairly good chance that it isn't what we've got on the books at the moment.
Well, if they aren't a DMCA-type service provider, then 1) they gain nothing by honoring DMCA takedown requests (which service providers only obey in order to maintain their statutory protection under the safe harbor), and 2) are not protected by the safe harbor, and so already face secondary liability, whether they take down the material or not. That they complied with an actual takedown notice suggests that they think they are a service provider as far as this software goes. And in any case, what could a counter-notification hurt?
Slashdot Mirror
*) This lapse in international law, BTW, is the same one that causes the US all kinds of headaches for terrorists we capture. There really needs to be a new Geneva Convention to address protocol when confronted with non-uniformed belligerents when no state of war exists, including pirates and terrorists.
Well, if we would agree to, and ratify, Protocols I & II to the Geneva Conventions, which we've basically been ignoring since the 70's, it would help a lot with regard to so-called terrorists on battlefields and such. It would also help if we would respect the spirit of the Geneva Conventions and the rule of law generally. It's not a lapse in international law. It's a lapse in our government.
Many other terrorists are just run-of-the-mill criminals (e.g. the 1993 attack on the WTC) and can be dealt with like any other criminal.
Of course, that's nothing to do with pirates; the status of pirates is already fairly well-established in international law, AFAICT. Various countries might not want to have to deal with the headache of trying pirates and imprisoning them, but they certainly can if they want to.
What jurisdiction do those countries you name have?
Pirates are deemed enemies of all humanity; as such, every country has jurisdiction over pirates, though some may be unwilling to exercise it. Check it out.
Oh yeah, and why is the US and other countries using their MILITARY to protect civilian cargo ships?
One of the reasons for a country to have a navy is to maintain that country's free, lawful use of the sea.
It's been called piracy since at least 1668, back when the yo-ho-ho sort of pirates enjoyed their golden age on the seas, when no one viewed piracy romantically at all (unlike nowadays), when the connotations of the word were strong enough that the closest equivalent today would probably be 'terrorism,' and about 50 years before the first copyright law that protected authors came into being.
Given that, I think the ship has sailed, ha ha, on complaining about the use of the word 'piracy' in this way.
(Here's the cite from the OED: 1668 J. HANCOCK Brooks' String of Pearls (Notice at end), Some dishonest Booksellers, called Land-Pirats, who make it their practise to steal Impressions of other mens Copies.)
No, that ceased to be true for US copyrights in 1891; the movie in question came out in 1902. Now, admittedly, it wasn't until 1912, IIRC, that the copyright law expressly covered motion pictures, but as I understand it, prior to then, motion pictures were treated the same as photographs for copyright purposes. Now, if the film was treated as being unpublished, and had not been registered, he might have had problems with state copyright law, but I really don't feel like trying to work out the precise details of getting copyrights in the US or the several states on foreign films prior to the 1909 Act coming into effect. It's just been too damn hot lately.
Using a recording in a personal video and publishing it online is not considered fair use according to law.
I disagree. I think that, depending on the specific circumstances involved, it could be a fair use, though it wouldn't necessarily be.
Would you mind providing specific language indicating that your claim is correct. The statute you linked to just provides a test for determining if a use is fair or not; it doesn't specifically say what you claim it says.
HoweverIt may be considered a derivative work as covered in section: http://www.copyright.gov/title17/92chap1.html#103
Well, since copyright includes the exclusive right to prepare derivative works, in what way is that useful, even if it is correct?
AFAIK there is no fair use exception for copyrighted music.
Sure there is. The statute makes it clear that fair use applies to all copyrighted works. There are no exceptions. You're probably thinking of the de minimis doctrine, i.e. that copyright does not protect taking very small amounts of material from other works. Bridgeport, the most notorious sampling case, dealt with that; it didn't even mention fair use, IIRC. See, OTOH, the Pretty Woman case for an example of the Supreme Court supporting fair use in a music case.
"Fair use" is a legal concept that was hammered out through litigation, not a commonsensical notion of "what is fair."
Well... the concept is basically that if a use is fair, it shouldn't be considered infringing. There are tests to determine if a particular use, based on all the relevant circumstances, is fair, but there are no bright-line rules, and the case-by-case nature of the beast makes precedent shaky. While it's not as bad as some things (e.g. the utility doctrine, which is always a crapshoot), it does largely hinge on whether the judge feels in his gut if it's fair or not.
I prefer the proposal made some years ago to add the SI prefixes:
Chici: 10^39
Zeppi: 10^36
Gummi: 10^33
Grouchi: 10^30
Harpi: 10^27
Harpo: 10^-27
Groucho: 10^-30
Gummo: 10^-33
Zeppo: 10^-36
Chico: 10^-39
The big problem with your argument is that you don't have a model for creators to be paid.
First, not all authors need to be paid. For example, no one is paying for you to write posts on Slashdot, which are perfectly valid creative works, and presently protected by copyright; you're choosing to do so yourself. So we could probably abolish copyrights for works where the author would have created and published the work if he couldn't get a copyright. (Lacking the ability to read minds, probably the best way to do this is to require authors to register and pay a nominal fee to get copyrights; authors who don't care probably won't bother, while authors who do care probably will.)
Second, copyright as we know it only dates back to the early 18th century, and didn't become widespread until well into the 19th and 20th centuries. Yet there have been plenty of authors, all around the world, through recorded history. While some of them would've done their work at a loss, it seems likely that there were plenty of them who would only work if they could make a living at it. How then, in the absence of copyright, did they get paid?
Well, there are several means. Authors could have a patron, who pays them to create works that he likes, or could have a collective of patrons, who pays for works that they would collectively like. E.g. if 1,000 hard-core fans of a particular author each chip in $20 for a new work, the author can gross $20,000 right there, plus whatever else he could exploit the work for. Authors could sell specific works, as opposed to mass-reproduced copies of that work, on the basis that not all copies are equal, even if they communicate the work equally. This is how most fine artists make money, even today, with copyrights; an original Van Gogh painting is worth millions, but a postcard of a the same painting is worth almost nothing. Authors can sell their labor, rather than copies of their works, just as many people sell their labor, rather than the fruits of their labor. For example, a wedding party might hire a band to play music.
There are other ways as well; I don't want to get into an exhaustive list.
Personally, I think that a carefully designed copyright system can provide a greater benefit to society than the harm it causes. But copyright only adds one additional means for authors to make money; it doesn't detract from any of the others, and it may not even be the most important or best way of encouraging the creation and publication of art. Certainly it is at best useful, but is not at all necessary.
Eliminating the national post office would require a Constitutional amendment. Delivering the mail is in the U.S. Constitution.
No, Congress is empowered to establish a post office, and post roads, but they are not obligated to do so. The USPS could be eliminated without an amendment, but I hope it wouldn't be.
Except, you forget that it's US politicians cramming these copyright laws down the rest of the world's collective throat, under the guise of protecting US interests. Heck, the *AA's help their equivalent group in various countries lobby the government to get your DMCA passed. So much so, that, they'll just re-use the document in another country.
Well, US government representatives (like the USTR) tend to be involved, but these aren't really politicians; they're bureaucrats. And they tend to act at the behest of big businesses, which are often foreign or multinational these days. The big four record companies (used to be six, before mergers, probably soon to be three), are Japanese, French, American, and British.
But don't think for a minute that it's the rest of the world imposing these treaties and laws on the US.
The rest of the world isn't standing idly by. The US has been under pressure to enter into Berne since its inception, but we held out until the late 1980's. Even if stopped our government's efforts in pushing for stronger copyright, there are minimums that we need to go below which will cause other countries to begin to pressure us. And plenty of other countries have sufficiently strong copyright lobbies that they also support going too far. Look at all the madness in France lately, as usual.
I'm saying that we need to resist all outside pressure, allow the rest of the world to act as freely as we would like to, and then focus on what changes in our domestic law will best serve our own citizenry.
No worries. I think you were misremembering the 1891 amendments to the copyright law.
That law, for the first time, granted copyrights to authors who were not US citizens or residents, provided that the foreign author's country of citizenship offered a similar grant to American authors. One of the provisions of this was that the work had to be deposited no later than the date of first publication anywhere in the world, in order for the work to be copyrightable in the US. This wasn't so unusual; works had to be registered in the US by their American authors no later than the date of first publication in the US in order to be eligible, going as far back as the 1790 Act. But the logistical problems eventually resulted in there being a grace period. IIRC, it was never so long as you remembered it, though.
The 1891 amendments also set up the manufacturing formality; while the US was willing to finally grant foreign authors copyrights, they had no desire to support foreign publishers; works which were subject to mass reproduction (books, photographs, etc.) had to have the copies made within the US, rather than imported from abroad.
As I've said, I support granting national treatment unilaterally. If a British author wants a US copyright, then he can have one, provided that he is willing to go through the same process that an American author has to go through. I do support the revitalization of some formalities (such as publication (more broadly defined than at present), registration, notice, deposit, and renewal -- not manufacturing), and while I'd provide a grace period (mainly to account for works which are first published roughly simultaneously with their creation, like a live TV broadcast), and assistance to foreign and non-English-speaking authors (such as forms in a variety of foreign languages, and reasonable support provided at US embassies and consulates), they would have to jump through all the same hoops.
This isn't meant to discourage foreign authors, or to victimize them; it's just that some formalities actually do serve important public purposes, and those purposes are frustrated if we allow exceptions. Given that US copyrights are economic incentives, more important to authors who treat their business like a business, than those who are willing to create art just for the sake of it, I doubt that authors anywhere in the world who want such a copyright, in such a major market, will have a big problem with filling in some forms, paying some token fees, and dropping some materials in the mail. No one wants a high hurdle, although we do want a small one.
In the past, when the US did not conform to the Berne Convention, it was US law that in order to be copyrighted in the US, a work had to be published in the US within 1 year of being published elsewhere.
I don't recall that. Could you please provide a cite?
Honest question: Why do people seem to accept this argument as valid for oil rigs, but using Chernobyl as a reason against nuclear is (generally, and rightfully) rejected as irrelevant and a piss poor argument?
In practice, I think you'll find that most people regard accidents like Three Mile Island or Chernobyl as good arguments against nuclear power; it may not pose immediate danger in most cases, but when things go wrong, as they inevitably and unpredictably do, from time to time, the results can be disastrous. Which is actually pretty much like the recent realization that oil rigs can also be quite dangerous to their surroundings. So I'd say you're begging the question, comparing the two, and then asserting that the one can't be justly criticized, with the unspoken outcome being that the other ought not to be as well.
But, to answer your (non-)question, Chernobyl is certainly a good argument against reactors of that design. If we're to build more fission plants, then I'd like to see safer designs at least; passively safe, not just more light water reactors. And even then we're still left with a waste problem (especially when you remember that even parts of the reactor itself will be waste when the reactor is decommissioned and disassembled), which is basically inescapable and problematic, no matter what sort of reactor you've got. Frankly, there's good cause to think that nuclear power is generally not worth it. That's not to say that we should build a lot of coal plants, or anything, though. I think we could accomplish a lot by massively building renewable power generation, and by reducing generated power use (e.g. by mandating superinsulation, mandating that all structures that could at least in part have their hot water needs served by solar hot water heaters have them installed, with minimal exceptions for visible parts of historic buildings, urbanizing, de-suburbanizing, etc.). It might not be a comfortable transition, but we'll be better off abandoning our unsustainable, wasteful lifestyle for something stable and yet adequate.
If something else should be done in order to carefully inspect the other wells for problems, and then to make them as safe as possible (with the safest option being to cap the wells and stop oil drilling), then fine. I'm not married to the moratorium or anything; it just appears to be the best option at the moment. Feel free to suggest a better one, if you're such an expert.
They can't possibly have a spouse and children they need to provide for, right? No way, just go ahead and take away their lively hoods in the name of safety all while making things less safe.
I'd rather make things more safe, while arranging different jobs for them. It will take decades of work to get the Gulf anywhere near to the shape it was previously in. Are they so inflexible that they will refuse to take honest work at a decent wage doing clean-up duty, instead of drilling for oil? I doubt it, but if so, then no, I have no use for them.
Actually it's the folks on the Gulf coast who are most concerned about the moratorium, because they're the folks who make their living supplying the rigs that were put under the moratorium.
Oh, I don't know. I'm from the Gulf Coast originally, and everyone I know there is spitting mad about the spill, and would be perfectly happy to see the rigs gone, lest this get worse, or happen again, and the various malefactors severely punished. I don't know anyone opposed to the moratorium. And if oil rig workers would lose their jobs as a result, why not let them get jobs cleaning up the spill, just like the fishermen are having to do.
The oil is already spilled - stopping drilling will not cure that.
But if there is another shoddy oil well being built, this will keep it from causing a spill (really a leak; more is gushing out every moment) that will worsen the current situation. The moratorium is a good idea, at least until we've determined 1) whether we want to permit new wells to be built; 2) whether we want to permit existing wells to remain in operation; 3) whether any of the wells built or under construction are safe.
As for the workers, there is plenty of work to be done cleaning up the current mess, so they need not worry about that, I'm sure.
Well, it's possible to believe in promoting the progress of science (the useful arts are what patents deal with), and also believe that it's alright to engage in otherwise infringing activity if it is engaged in by natural persons, and non-commercially.
Also, the 1790 Act only covered books and maps. So people who staunchly adhere to the 1790 Act can share sound recordings, movies, and video games freely without being hypocritical. I don't think that anyone really believes that strongly in it, though.
Indeed!
Treaties like Berne are intolerable because they impose minimum standards on the parties to the treaty. For example, everyone here who thinks that life + 50 years is too long a term for works is necessarily against Berne, because that's what imposes that figure. No one can grant shorter terms, no matter how reasonable, without either violating Berne or not being a member.
I have no problems whatsoever with national treatment (i.e. treating one's own citizens and foreigners equally) in copyright law. Although I do think that as the rationale of copyright (encouraging the creation and publication of works while minimizing restrictions on the public) doesn't differentiate between authors on the basis of nationality, national treatment should be offered unilaterally. This doesn't mean that foreign authors will necessarily seek out domestic copyrights; there may be formalities that they don't want to comply with. But so long as they're on an equal footing, I see no basis for complaints.
Minimum standards, however, have got to go. They're too one-sided as it is, and too inflexible to deal with changing times. It would be far better for every nation in the world to experiment with copyright as they see fit, so that we can all work to find the best implementations. Though as different countries have different circumstances, it would be foolish to expect them all to act uniformly on this issue. Each should do whatever will best serve their own people, rather than strangers in a faraway land.
We weren't talking about Shakespeare in the park. We were talking about First Amendment vs. Copyright.
What's the difference?
The First Amendment protects me if I want to perform Shakespeare; without that protection, the government might censor me.
Remember, copyright is not a right to publish a work. When an author makes and distributes copies of his own work, he relies on the First Amendment to do so. Copyright is a right granted to an author, by the government, to use the power of the government to censor third parties who make use of the work. When the copyright expires, the power to censor evaporates, resulting in the third parties relying on their First Amendment rights just as the author originally did his.
The result is that the Copyright Clause and the First Amendment are in direct opposition to one another. Now, this might be perfectly tolerable, if copyright law is formulated to serve the public interest, and in fact produces a materially greater benefit to the public than if it didn't exist, preferably the greatest possible public benefit. Then, while we might suffer some restrictions on our rights, at least we're getting something worthwhile out of it, and the restrictions are as minimal and short-lived as possible.
But let's not pretend that they work hand-in-hand, or are generally compatible. There's inescapable tension between them, and in a pinch, we ought to err on the side of free speech than on the side of censorship, however socially useful it might be.
The Constitution does direct Congress to create a copyright law
No, you've misread the Copyright Clause. Don't be too upset, though, a lot of people do that.
The Constitution empowers Congress to enact federal copyright law, but it does not mandate that they do so any more than it mandates that they grant letters of marque and reprisal three clauses later. (Apparently they haven't done so since the 19th century) Congress has the power to enact copyright law, but it can choose whether or not to do so, and has fairly broad latitude as to what the law will consist of. There are requirements in the clause that must be followed if copyrights are granted, but that's it. And of course, more general constitutional requirements apply too (e.g. the 14th Amendment prohibits granting copyrights to authors of one ethnicity, and not another).
it does not state the form or manner of Copyright protection.
Sure it does; The clause requires that copyrights consist of exclusive rights, i.e. rights to exclude. The subject of the right is left open, so there's no requirement that copyright concern itself with the right to make or distribute copies, for example, but whatever it is, the author will have the right to exclude others from engaging in it, as regarding the copyrighted work.
The clause actually provides a number of requirements for the law, if you look over it closely.
So there's no way that an extension of the term of Copyright can be interpreted as a First Amendment issue.
Sure it can. I don't think it's the best approach, but it is a perfectly valid one.
No, copyright at its core is a system to ensure those who spent months writing books didnt get fucked just cause the guy next door has a printing press and could, hypothetically make and sell as many copies as possible.
No, copyright at its core is a system to increase the public benefit: The public benefits when works are created and published that otherwise would not have been, and the public benefits when works are unprotected, so that they can be used most productively (e.g. enjoyed, copied and distributed most widely, used as the basis for derivatives, etc.).
In order to try to increase the first type of benefit, we temporarily reduce the second kind, betting that when the reduction expires, the net public benefit will be greater than if we hadn't meddled. Assuming that this is so (it isn't necessarily so), you then try to determine precisely how little, and how short-lived of a reduction provides the greatest incentive to create and publish, so as to maximize the net public benefit.
But the system doesn't really care whether or not some author or another gets fucked, as you put it. We don't want to lose sight of the overall public benefit and focus on incentives to the exclusion of all else. Even with all of the maximalists running rampant, there are still plenty of ways in which we don't protect an author, because it would be contrary to the public interest to do so.
People claim this is a First Amendment issue, but I can't see how. Free Speech isn't about publishing other people's works; it's about protecting people's right to disagree with the government.
Well that's just completely wrong. You are saying, for example, that if I wanted to stage a performance of Romeo and Juliet, which was wholly apolitical, the government could arbitrarily choose to shut me down, because I am not Shakespeare, and I am not criticizing them? That's absurd.
The First Amendment protects speech, period. Political speech is of particular concern, but it protects artistic speech, commercial speech, etc. just as well. It also protects people when they repeat the speech of someone else, rather than create their own. We temporarily limit that last part with copyright, but the underlying right doesn't discriminate. That's why when copyright expires on a work, there is no affirmative grant to the public to use that work; instead the restriction is lifted, and the previously-dormant free speech right can finally be exercised.
Copyright law is not part of the Constitution, so Congress has every right to change it as they see fit.
Only within Constitutional bounds. And the Constitution does set some limits and requirements on what Congress may do.
First, our treaty obligations do not override the limits on the federal government imposed by the Constitution, either as a matter of law, or, frankly, proper policy. If the political branches enter into a treaty that requires the US to act unconstitutionally, then we will unavoidably have to violate the treaty until we can fix it, or get out of it. If TRIPS requires this, then we cannot comply with TRIPS.
Second, you're assuming that we need to even participate in TRIPS; we don't. The US has a strong enough position that we don't need to enter into any copyright treaties, quite frankly. Our relevant industries are quite capable of dealing with that, just as they dealt with the US not being in Berne until 1989. Our copyright law has become bad enough due to domestic actors, but the 'back door' created by treaty obligations is completely abysmal. It helps to get laws pushed through Congress without debate or the opportunity to amend them, lest we be in violation of yet another foolish treaty.
The US should immediately withdraw from all copyright treaties, amend its copyright law to best serve the domestic interests of all Americans (not merely creators and publishers), should unilaterally offer national treatment to foreign authors, provided their works are published in the US and otherwise comply with the formalities we need to re-establish and strengthen, and should limit its international involvement in copyright matters to informal cooperation with other states to ensure that their copyright laws do not in some way become mutually incompatible with ours (typically due to formalities). In this way, we would not only improve things for ourselves, while not materially harming our own copyright-related industries, but we would be reigning things in, and once again provide guidance to the rest of the world as to how copyright laws can work sensibly. That's something we haven't done a good job of in the 20th and 21st centuries, particularly since we enacted the disasterous 1976 Act.
Posting one copy that everyone can download is NOT fair use.
Didn't you read the earlier poster's comment? There are no bright lines as to what is or is not a fair use; any otherwise infringing use can be fair, it depends on the circumstances.
The library has a physical book: fair use is that one person at a time can hold that book, and can write notes about that book into a notebook; then the physical book can be passed along to someone else for their turn.
Well, the notes might be fair use, but the actual lending part isn't fair use at all; it's distribution, which is dealt with as a part of first sale.
If you think everything should be free, ask yourself: "Why should anyone pay *me*?"
That's not really the issue though. We have copyright in order to encourage the creation and publication of works which otherwise would not be created and published, with the least and shortest-lived restrictions on the public as to those works. It isn't meant to support authors or publishers, but instead to benefit the public. Whatever benefits authors and publishers get is really just a side-effect, and rather in the way of a bribe to get them to do socially-useful things they otherwise wouldn't do.
So in order to decide whether everything should be free, at least for copyright-related things, ask yourself, would society benefit?
You could go further, too, in looking at various different implementations of copyright law (which rights are made exclusive, what exceptions are there to those rights, how long copyrights last, what formalities exist, etc.) and working out which of them benefits society the most. Whatever produces the greatest benefit is, of course, what we ought to do. There's a fairly good chance that it isn't what we've got on the books at the moment.
I thought that was 'Harold.' In either event, it explains the 'H' in 'Jesus H. Christ.'
Well, if they aren't a DMCA-type service provider, then 1) they gain nothing by honoring DMCA takedown requests (which service providers only obey in order to maintain their statutory protection under the safe harbor), and 2) are not protected by the safe harbor, and so already face secondary liability, whether they take down the material or not. That they complied with an actual takedown notice suggests that they think they are a service provider as far as this software goes. And in any case, what could a counter-notification hurt?