I appreciate your coherent responses. I do disagree with you, but it is becoming clear that I don't disagree with you as much as I thought I did. And you're teaching me some things, which I appreciate.
Good debate is always fun.
It seems clear, from the way capitalism tends toward eventual oligopolies and monopolies, or the way that certain deals are made impossible by irrational greed or similar, that dogmatic adherence and deontological approaches and mechanical jurisprudence often warp good ideas into bad ones.
Indeed. I have no ideological attachment to capitalism, or any other sort of economic system. I value the efficiencies and other benefits that capitalism yields -- or that we're told it yields -- but if the system can throw itself off the rails due to a sort of positive feedback, which results in those benefits no longer accruing, then by all means, let's regulate it so that we can have the benefits and reduce the risks.
Similarly with copyright, I want to maximize the public benefit. However that is accomplished, within the bounds of the Constitution and our civil liberties, I don't much care. I'm willing to put anything on the table, and I'm willing to consider any sort of scheme, or scope and length of protection. The effect of copyright upon authors and publishers (whether professional publishers or self-publishing authors) is an important factor to be considered, but it is only a factor, with the ultimate issue being the public good. If granting a copyright for a million years would benefit the public more than any alternative, I'd support that. If abolishing copyright would benefit the public more than any alternative, I'd support that.
But I suspect, and maybe this is just a failure of imagination on my part, that an ideal copyright law would strongly resemble the 1909 Act, its amendments, and its predecessors more than it would the 1976 Act and its amendments. Well, except for organization; the older acts are not nearly so well organized as the current act.
the simple choice to include a particular kind of work in the statute is unique and paternalistic; the original statutes didn't cover a lot of what is today considered copyrightable (my favorite example is boat hulls--WTF??).
Oh, the boat hulls are in Title 17, but their chapter really has nothing to do with the Copyright Act. It's argued that it is sui generis pursuant to the commerce clause. But since it protects original useful devices, it probably isn't even constitutional, unless you think that the copyright and patent clauses are superfluous, and that Congress could ignore them in favor of the commerce clause instead.
A better example would be architecture, which was added to the actual Copyright Act in 1990 as part of Berne compliance, and it's worth considering now.
There has not been a material increase in the number of architectural works created and published since the enactment of the AWCPA, which appears to be attributable to its passage. This suggests that architects don't really respond much to the incentive of copyright. The buildings that get designed and built seem to do so according to natural incentives. They'd pretty surely get built just the same even in the absence of copyright for architectural works.
So we shouldn't grant copyrights for architectural works, since it has no beneficial incentivizing effect, but nevertheless causes harm to the public, as copyright inevitably does, yielding a net public detriment.
This is as opposed to, say, books, or sound recordings, or movies, where their authors do appear to respond strongly to the incentive of copyright, though we're probably granting them more than the minimum to incentivize them as well, which is not good when calculating the net effect for the public.
While deciding what class of works to protect or not may be unique, in that it is a case-by-case issue, I don't think it's all that paternalistic. We're not offering the subsidy of copyright to authors because we feel sorry for t
AFAIK nobody has even tried to find out what the optimal copyright term might be to do this.
Well, it'll tend to change over time, and it would be tricky to figure out, but I'd be satisfied with an honest and well-executed attempt to figure it out. There was an interesting paper by Pollock a few years ago that came up with 15 years.
My general strategy is to allow the copyright holder to decide. By requiring registration to get a copyright on a published work, and by having a term that is extremely short, say 2 years, with multiple renewals permitted at the end of the term, where registration and renewal require affirmative acts by the author and token payments, the author will likely only register works for which he was incentivized by copyright, and will likely only renew works up to the point where copyright incentivized him.
In practice, during the nearly two centuries that the US required registration and renewal, most creative works were not registered, and most of those that were, were not renewed. Putting these policies into place again (and dispensing with anything that would interfere with it, such as our participation in Berne) would also tend to align with how we handle patents (which must be applied for, and periodically renewed until they finally terminate, lest they terminate prematurely), and federal trademarks (which must be registered and periodically renewed).
It's not an unusual burden for authors, nor is it more than minimal to simply evidence a desire to have and keep a copyright on specific works, rather than as a blanket policy.
Thing is that the publishing industry isn't always very good at doing this. As evidenced by very popular works which had a hard time getting initially published.
Oh sure. Of course, self-publishing is still an option for the author who is certain his work will be a hit, but who cannot convince any third party publishers of this. And modern technology has made self publishing easier than it used to be.
Not that much different from publishers (and others) wanting extensions of existing copyright terms. Even though all parties were happy with the original deal decades ago.
Well, I'm interested in improving copyright law for the benefit of the public. If maximizing the public benefit is good for authors and publishers, or bad for them, I'm not very interested, save for what that means for the public. I don't want a policy that is dictated by either authors or publishers, but if it is in everyone's interests to give them some particular aid, that's perfectly okay. They shouldn't be listened to, but they're not the enemy either.
Specifically, he says that securing publication is "half" the reason we have a copyright system in the first place. So I'll say it again: you don't have to publish at all to secure a copyright (as distinguished from patent law), so that must not be "half" the reason we have copyright.
First, I said that encouraging creation and publication was half the reason. The other half of the rationale of copyright is to have as little copyright as possible, if any at all. So I guess that encouraging publication would be more like one quarter.
Second, I think you're assuming that the current Copyright Act is synonymous with good copyright policy. I'd disagree. I've already discussed my reasoning for this in a recent reply post.
A better Copyright Act would grant a provisional right for unpublished but unabandoned works upon creation, so that an author who seeks to publish is not beaten to the punch by someone who has gained access to the manuscript. However, should an author abandon his work unpublished, the work should enter the public domain rapidly in the hopes that someone will do what the author did not, and get that work to the public.
Note that pre-1978 US copyright law only granted protection to registered, published works. Publication was key. But if an author was willing to publish without registering, then he got no copyright. This was appropriate since copyright was meant to encourage creation and publication that otherwise would not occur. An author who would publish without registration apparently needed no encouragement in the form of copyright, so he didn't get one.
This is the sort of thing we need to get back to.
I happen to believe that people will often create without any incentive at all--forgetting this leads to all sorts of strange interpretations of copyright law. The law wasn't made because without it, no one would create. The law was made to incentivize creation, so that it would happen more often. So anything that makes it happen less often would be against Constitutional policy, regardless of whether creation would stop altogether.
Well, I wouldn't say without any incentive at all. There are many 'natural' incentives to create and publish. Some people want to be famous. Some people create art for art's sake. Some people want to make money, but manage to do so in ways that don't involve copyrights (e.g. selling specific copies, taking commissions, providing artistic labor, patronage, etc.). In the case of this discussion, we are all writing copyrightable posts, but I sincerely doubt that any of us would not have written, online discussions even if there were no such thing as copyright at all.
Copyright is just an additional incentive, so regarding it being meant to get creation to happen more often, I agree with you. But that's not enough. We don't merely want creation to happen more often. We want works to be created and published more than they would be otherwise, since a created but unpublished work is of little value to the public. And we want that work to be in the public domain as soon as possible, since any given work is more valuable to the public when in the public domain, than when copyrighted. And we want the copyright to be as minimal in scope as possible, while still acting as an incentive, since more freedom for the public is better than less.
Merely maximizing creation and ignoring the rest would be bad policy.
So while one copyright law might encourage less creation than another, that's not the only basis on which to judge them. It is entirely possible that a copyright act in which there was, oh, 90% as much creation as we currently have, but which had drastically shorter terms, a greater rate of publication of created works, more freedom for the public, etc. could easily be superior to what's on the books today.
He is free to assert that the law is a bad idea, but his position that it is bad because it somehow violates basic contract principles is simply untenable. There are so many laws on the books inv
I encourage you to re-read the text. It says that creators are to be granted exclusive rights for a limited period.
A minor nit: It says that creators may be granted the rights, not 'are to be granted.'
The copyright clause grants Congress a power which it may choose to exercise, or not, at its whim; provided that if it does exercise the power, it stays within the bounds set by the clause.
You've confused copyright with patents. A patent must be filed (published) in order to receive protection.
The right of first publication inheres on creation of a work. This is a common law right pre-dating the Statute of Anne
Well, that's an extremely common misunderstanding, actually. Remember, the House of Lords reversed Donaldson. Remember also that under the stationer's copyright, it was the publishers, not the authors, who had the sole right to publish. It was only after the Statute of Anne had become law that the publishers claimed that the authors had infinitely long-lived copyrights at common law. Which was entirely because the publishers had gotten their authors to sign contracts saying that all the rights of the author had be sold to the publisher in perpetuity. And even that was only after the publishers had tried, and failed, to get the statute amended to provide them with longer terms. No one had ever, ever had the idea that there was a common law copyright until long after Anne had been enacted.
But remember, I was discussing policy.
I will agree that it is certainly good policy to protect authors with regard to their manuscripts. A work does not usually spring like Athena, full-formed from the brow of the author. Usually it takes a significant amount of time, one draft followed by another, until the work is finally finished, or abandoned. If the work is finished, the author may decide to try to have it published, or abandon it. And having made attempts to publish it, whether by convincing a publisher to do it, or by self-publishing, the author may nevertheless abandon the work if those attempts are unsuccessful.
I say that if an author has abandoned his work to be left unpublished, then there is no public benefit in granting that decision the force of law to back it up. The public benefits when it can enjoy a work, when it can preserve that work for posterity, when it can make use of that work in the preparation of other works, and so forth. But if the greatest book ever written in the history of the world is sitting in a shoebox in a closet in a house in Peoria, and if the author takes the MS out and burns it in the fireplace, then I say that the public has not enjoyed even the tiniest iota of benefit from that work. And since public benefit is the touchstone of copyright policy, that author, having abandoned the work, should not have continued to have rights in it. The world would have been better off if someone had broken in, stolen the MS, and published it against the wishes of the author.
So I stand by my position that the policy goals of copyright are to encourage the creation AND publication of works, but to grant the least amount of protection necessary in order to accomplish the most amount of encouragement, so that the public is most able to enjoy the works without interference.
It's okay for you to believe that, but the Constitution says otherwise. Monopolies are not granted lightly, so the Constitution seems to say precisely that innovators should be treated well merely for innovating.
No, it says that Congress may -- it's not obligated, so there's no 'should' -- grant certain rights to authors if it promotes the progress of science. Secret books do not accomplish this as I've already discussed.
Your cold utilitarianism suggests to me that if you didn't graduate from Chicago, you would nevertheless have fit right in.
That's funny. I always viewed copyright as on the road to socialism, what with it being a system of government-based subsidies meant to benefit the public at large, though without abandoning free markets altogether either. And I like it like that. I'm just very hard-nosed about maximizing public benefit. I am neither pro- nor anti-author or publisher. Whatever they can get for themselves while the public benefits as much as possible is fine with me.
The author was incentivized to create the work, but the incentives are both backward- and forward-reaching. If people with good ideas s
I'm saying that it should not have been in the law to begin with, and steps should be taken as soon as possible to limit the pernicious effects of this law. Certainly it should not be present, nor any analogue, in a reformed Copyright Act.
the very basis of copyright in the United States is encouragement of innovation.
Well, that's half anyway; really the basis of copyright is encouraging authors to create and publish the most, in exchange for the least copyright, so as to maximize the net public benefit. Both creation and publication are necessary elements of good copyright policy. A work cannot benefit the public unless it is both created, just so it exists, and published, so that people beyond the author can actually get and use it.
When an author has created a work that they sell after the fact, however, they absorbed a considerable amount of the risk by taking the time to create something without any pay at all.... But when they come up with something marketable, suddenly publishers want control.
Well sure. The authors are self-interested; having created a work, they want the benefits that a professional publisher can bring to the table -- inexpensive printing in bulk, good marketing, arrangements with lots of retail operations to get the work out to the public -- without wanting to cede the rewards that the work can bring them.
And likewise, the publishers are self-interested, perhaps being able to obtain a good work without having incurred any risk in its creation (though this is not always so; the recording industry has some interesting financial practices) they'll want to invest as little as possible into getting it into the marketplace, but get as much of a reward from this as possible.
No one can force the two parties to make an agreement they don't find acceptable. And there are plenty of authors out there. And plenty -- though somewhat fewer -- publishers. And there is the option to self-publish.
So while each side goes into negotiations seeking to get the best deal for themselves, mutually agreeable deals are entirely possible, with plenty of alternatives if it doesn't work out.
I don't see a problem with any of this.
Unfortunately, a lot of other IP industries have yet to catch on that creators should be treated well.
Creators should not be treated well merely because they are creators. Certainly it is not in the interests of any publisher to treat artists one iota better than the bare minimum they can get away with. A generous publisher runs a risk of being a badly run business, which leads to being an ex-publisher. Of course, I'm not saying that the publisher should go about whipping its authors, just that once an author worth keeping happy is made happy, it isn't necessary to make him any happier. There's no percentage in that. A publisher who wastes his resources doing that will be at a disadvantage in the marketplace, and either go out of business, or have to stop being so nice.
Anyway, the ability to take back a work that was not made for hire, but has instead been licensed, is not about deal-breaking. It is about preventing companies from taking a disproportionate share of the profits from the owner, who is the person we intended to incentivize.
It is about nothing other than deal-breaking.
The author was incentivized to create the work, because he did in fact create the work. The Constitution mandates that the copyright initially vest in the author. What the author decides to do with it after that point is entirely up to him. If he sells it for a mess of pottage, then that's his mistake.
But if a property becomes massively successful, why should a bunch of managers and lawyers who probably weren't even born when the property was created be entitled to perpetual profits?
Because the author apparently misjudged the value of his copyright. He should've held out for more. The publisher apparently was the wiser party to the agreement. But it was a voluntary agreement. No one twisted the arm of the author. He was happy enough with the deal to sign on the dotted line. Hindsight is no excuse for breaking the deal without consequences.
Remember also that the mere creation of a work isn't the only
Software has a lot of gaps in its copyrightability, actually.
It's not a pictorial, graphic, or sculptural work, which is what food would have to be, so the utility doctrine doesn't apply to it.
But the copyrightable portions of software cannot include ideas, processes, systems, etc. So if Windows has a sorting algorithm in it, the algorithm itself is uncopyrightable; at best only the particular expression of the algorithm can be copyrightable. This wouldn't preclude someone else from using the same algorithm elsewhere, copying it straight out of Windows, provided that they expressed it differently.
Nor can the copyrightable portion of software be dictated from functional concerns. Copyrightable works must be creative, and that means that creative choices must have been made in determining the particular expression at issue. If, in order to run on an x86 IBM-compatible computer, some parts of Windows _have_ to be written a particular way, then they're not copyrightable.
Nor can the copyrightable portion of software include material where there is only one way, or only a small number of ways to express a particular idea. That's due the merger doctrine, since if a copyright would in effect confer control over uncopyrightable ideas (since there's so few ways to express it), it cannot be valid.
And I could go on.
But really, copyrights and functionality aren't meant to go together very well, and in the case of software, which straddles the line between expression and machine, this tends to mean that a big program like Windows is actually riddled with holes in its copyright protection.
The Kirby heirs are doing this pursuant to 17 USC 203, if anyone is interested.
The gist of it is, for works not made for hire, where the author licensed or sold his copyrights to someone else (except via a will), the author, or his heirs or estate, can get together and terminate the license or sale. It has to be done within a certain window of time, and it requires a sufficient number of heirs to agree to it, and there are some procedural steps that have to be taken. And this can be done even if the author signed an agreement that expressly said that he would not do this.
I am all for reforming copyrights to something sensible in both length and scope, and I am concerned at the political power wielded with regard to copyright by publishers. However, I have to side against the authors on this sort of thing. While it might be fun to see someone stick it to Disney, it's ultimately a bad policy.
If an author willingly signs an agreement transferring or licensing his copyright to someone else, then that agreement should remain valid. If the author wants to reserve a right to terminate the transfer or license because some sort of condition arises (e.g. licensing fees are no longer being paid), or arbitrarily at some point in time, then it should be written into the agreement. No one is forcing authors to sign these things; no one is forcing authors not to have an attorney help them out with it. If a contract is one sided, don't sign it. Hash out a more agreeable agreement or walk away. And if your bargaining positions are unequal, well, welcome to the real world; this happens a lot.
To have a law that mandates that authors can cancel their contracts at will, with no particular repercussions for them is offensively paternalistic. Authors should not be universally treated like children, able to escape their commitments. They are not any more or less sophisticated in their business dealings than any other ordinary person, who is not treated so astonishingly favorably by the law.
Further, it is unjust. While an author certainly is essential in the success of a particular creative work, publishers also often make invaluable contributions. To the extent that their agreements with authors permit them to do so, I think it is completely fair for them to share greatly in the rewards. Publishers that contribute little will tend to not be in as favorable a position to benefit as the publishers that contribute a lot. Authors who don't want to have to pay or share profits with publishers can always self-publish. It is entirely doable, but the difficulty tends to be off-putting. So long as it is the decision of the parties involved, and not of Congress, it's okay.
In this case, suppose that Kirby had never worked for a comic book company, but instead had started his career by self publishing comics. Would he have achieved so much success, thereby indicating that his estate deserves to profit from his comics and characters alone? I doubt it. So did Kirby, apparently; he chose not to go that route, and instead worked for publishers for whatever pay or other compensation both sides found agreeable.
For the Kirby estate to wrest away control of the work Kirby did under contract with Marvel, in contravention of contracts willingly entered into by both sides that state otherwise, and with no other penalties is just not fair, and the law should not permit it. It is no different than if Alice sold land to Bob, Bob invested in the land raising its value, and then Alice snatched it back contrary to the original agreement.
If you want to be able to end an agreement after you make it, make that part of the agreement. Otherwise, well, you'll know better next time.
In history, brands have become genericized because the name became synonymous with the product due to lack of a descriptive name.
No, not at all. Xerox is constantly on the verge of losing their mark for photocopiers, and that's an existing generic name. They spend a lot of money and do a lot of work to try to keep their mark alive, and if actually challenged, they could still lose it. Ditto Kleenex (paper tissues) and for quite some time Sanka (decaffeinated coffee). Google has written the standard nasty letters to dictionaries, because they're afraid of the verb 'google,' meaning 'search on the Internet.'
It's merely good practice to add the generic name for the product alongside the brand name so as to reduce the chances that customers will think that the brand name is the name for the actual good. Hence 'Levi's blue jeans.' It's not actually necessary, however, which is why you don't see 'iPod personal media players,' just 'iPods.'
Most people in the southern US refer to sweetened carbonated beverages as "coke." Would you be in favor of the legal genericide of that particular trademark?
In the South? Where I happen to originally be from, and where I too have picked up this habit? Yes. Coke is as generic a term in that area as 'soda,' or as 'pop' is in wherever the hell people say such a silly thing. However, the COCA-COLA mark would remain alive.
I personally think that trademarks are important for consumer protection, so that the standard of that product can be maintained and assured.
I agree. However, that is no excuse to preserve a trademark when it has become generic, and the customers no longer expect all products using the generic name to be of the same standard. I expect all Heinz ketchup to be of the same quality. I don't expect all ketchup to be of the same quality regardless of source, however.
Vintners in Champagne have been vigilant over the last few hundred years that products sold as Champagne be of a consistent quality.
That's great. Then they should have a regional mark along the lines of 'Made in Champagne, France' or a certification mark like 'CIVC Approved' or something. And of course each vintner can have their own mark and label.
But that doesn't change what the public believes champagne is -- sparkling wine -- not sparkling wine that is from one particular place, but not another, even if the two are basically indistinguishable.
but if you have no influence over the quality, would you want another producer to be able to sell a product with a brand you have maintained for your entire life?
It isn't really a brand. It's a generic name. That's the problem. It can only be a brand if people perceive it as one. For most geographically named food items, people don't. Swiss cheese is dry cheese with holes in it, but it needn't be cheese that is actually from Switzerland. No one goes to the supermarket or the deli and asks for the dry, holey cheese. They ask for Swiss. If it happens to be from Vermont, or Wisconsin, that's fine. I doubt many people care all that much.
I mean, I doubt that you get together with your friends and start making airline reservations if someone suggests going out for ethnic food on the basis that Chinese food can only be had in China, or Italian food can only be had it Italy.
I grew up thinking Parmesan was ho-hum because Kraft can sell their shitty dairy product and lead people to believe that's what cheese is.
See, that's where trademarks are useful. Not in protecting a mark on Parmesan cheese, as being only that made in Parma, that's silly. But in protecting the Kraft mark so that you know to avoid them because they're crappy. I'll bet if you looked around you could find a domestic Parmesan that was just as good as the imported. If the cheeses from different sources can turn out to be indistinguishable to the customer, why should the first one get to use the generic name, and the second one get punished merely due to an accident of geography or history?
The product sparkling white wine is synonymous with champagne for most people. Feel free to try this out by giving random people a cup of such wine from any old place and asking them to tell you what they call it. Since consumer expectations are what controls, that's matters. Vintners can like it or lump it.
Just because lots of people recognize a double-decker burger with lettuce, onions, cheese, pickles and a weird pinkish-orangish sauce as a Big Mac, doesn't mean that anyone should be able to sell a Big Mac.
Actually, that is exactly what it means.
If people generally call all such burgers Big Macs, then the term has become generic, and anyone can sell their burgers of that type as Big Macs.
This isn't new: Escalator, elevator, shredded wheat, kerosene, popsicle, cellophane, trampoline, etc. all were trademarks once upon a time, indicating that goods with those marked came from particular manufacturers. But once the public decided that those were generic names for products regardless of manufacturer, that's what they became. And that's fine, there's nothing wrong with this. It is annoying for the manufacturers who lost their marks through popularity, but who cares about that?
Champagne is champagne is champagne. It doesn't matter where it is from. If you want to indicate where it is from, and you want to make sure that people cannot make claims about the geographic origin that would deceive the public, then put a label on the bottle saying something to the effect of 'Made in the Champagne area of France.' If you just say champagne, no one is going to know where it is from, and the fault is yours for not being sufficiently clear.
Companies have a right to enforce their brand, and geographical regions have a right to regulate the quality and authenticity of any product bearing a claim of origin in that region. This is the most defensible type of intellectual property.
Why?
Certainly, I have no problem with laws that avoid confusion or deception of customers as to products that claim to be from a particular place. Wine made in France shouldn't be labeled as American wine, nor vice versa. But if customers understand a particular term to refer to a product itself, rather than to a claim of origin, then there's no confusion or deception to protect against. Thus, because champagne is a sort of wine, it is perfectly fine to have French champagne as well as American champagne. (Or if even that wouldn't suffice, as would be the case with american cheese made in Canada, for example, then a 'Made in' or 'Product of' label might be required for clarity)
It would actually harm consumers and the market if the latter were not allowed to be so labeled. People who wanted the product called champagne, but who were not picky about where it came from, who would just look for the word 'champagne' on the label, just like someone might look for 'soda' or 'coffee,' would wind up paying monopoly prices since wines made outside of a specific part of France couldn't bear a thoroughly generic label that described them aptly.
As with trademarks, the lesson to those who would claim rights is that too much success can lead to genericide. If the French don't want people using the generic name for these wines, then let the French come up with a brand new name, just for them to use. Passing silly laws to combat the common usage of certain terms by the public is both pointless and mean.
It sounds a little silly, but how different is it from other copyrights?
Copyrights cover creative works; it's patents that cover useful arts. Food is rendered uncopyrightable due to utility. Methods of preparing food, i.e. recipes, are uncopyrightable as well. While inventive chefs could seek patents, and some do, it seems to be fairly uncommon, and the requirement of novelty would make it useless here anyway.
What this really sounds like to me is a designation of origin issue, which is somewhat like a trademark. Personally, I'm not a big fan of them. Champagne, to me at least, is a product which can be made in many different places around the world. I don't mind putting a national or regional appellation on it (French champagne, Australian champagne) if it is applied equally to everyone, but I don't like the idea that it can only be called champagne at all if it is from a specific part of France, regardless of how similar or even identical it might be with the same product made elsewhere. This, IMO, doesn't inform customers, but misleads them, and doesn't aid the market, but hinders it (by implicitly discouraging competition by outside manufacturers).
To be fair--pun intended--I don't think the OP has any great hatred of fair use. My impression is that s/he just doesn't think that it's well-defined enough to depend on, much less teach to children.
Oh sure. It is certainly not well-defined, and probably very hard to teach to children, but it is important enough that if you were going to teach children about copyright laws for some reason, it should be included. Given that it ultimately comes down to whether or not it seems fair, with some various issues to think about in deciding that (e.g. it's fair to do time shifting because it does no harm to anyone, but file sharing is likely unfair, as it is a substitute for the legitimate market, and doing that substitution does leave the copyright holder somewhat worse off), I think the kids could get a rough handle on it.
My concern is simply that fair use needs to be left alone. If someone finds it too vague for their liking, rather than criticize or try to alter fair use, it's better to make a separate exception for the issues they're concerned about, leaving fair use intact. Trying to make fair use well-defined would kill it dead.
Someone needs to get rid of the term "fair use". It implies there's a conflict between two content creators, and one of them will be given a begrudging "fair" chance of using the other's content. Here in Finland, we have a more appropriate term for the same legal concept: "the right to quote".
It's a perfectly good term.
First, a fair use can be any kind of otherwise infringing use, though not any particular kind of use will necessarily be fair. It need not be limited to quotations, which anyway may or may not be fair depending on the particular case at hand. While fair use is a last resort, it is meant to be a catch all, avoiding situations where the law of copyright conflicts with the spirit of copyright.
Second, fair users can either be authors or can be end users of works; the term doesn't imply what you infer.
We have a specific Copyright Council that has issued tons of legally sound (but not legally binding, as they operate on what has been unilaterally told to them and they won't investigate the claims further than that) opinions and recommendations of what, on those specific cases, is appropriate amount of quotation and what is not. For free. Anyone can send them questions, in free-form letter or email, and they give out statements. The statements are all there on the Web for people to browse. A great resource for everyone wondering whether or not something is okay.
That's great, but US federal courts, which hear the vast majority of copyright suits in the US, are prohibited by our Constitution from doing this.
A separate body could be set up to give opinions that had no legal weight to them, but this seems expensive for something that could not safely be relied upon. Especially if you didn't limit it to just copyright (which is only of interest to a small number of people, assuming sensible copyright laws). Plus, since courts themselves struggle with fair use issues all the time, it seems unlikely that such a body could offer accurate information without being annoyingly conservative about it. I don't need my tax dollars paying for someone to give me advice, who then tells me not to bother, simply because they want to avoid any possible risk of error on their part. Most of the places that try to advise about the limits of fair use engage in this already, so it seems likely to me that we'd see more of it. I'd rather get honest advice, even if that means getting told that I'd have 50:50 odds of the particular behavior being lawful, or whatever.
No need to take my word for it. Attribution was not present in US copyright law until 1990. Since then, it is only available for a very small set of works -- check the definition in 17 USC 101 for a work of visual art, to see what is covered -- and even then the attribution right is subject to fair use.
And why should we even have this much?
There hasn't been a big explosion, AFAICT, in the quantity of eligible works since the law was passed in 1990. This suggests that the creators of such works, e.g. fine artists, sculptors, art photographers, etc., are not incentivized to create and publish their works because such a right is available. And there's not really a dearth of such creators now, nor before the law came along, which is attributable to copyright law. There is no attribution right for the vast majority of works, but the US is awash in non-eligible works now, and was before the law was enacted.
Granting copyrights imposes a burden on the public, and has a public cost. This is acceptable if granting the copyright produces a benefit to the public which outweighs that cost. In the case of attribution rights, it seems that they have the inevitable burden, with no commensurate benefit.
So while some creators might want an attribution right, the fact that they are perfectly willing to create and publish works without it leads me to oppose such a right, since it would be a huge waste perpetrated against the people.
It's kind of like how I'd like my clients to pay me a million dollars an hour. Since I'm willing to settle for less, no one is foolish enough to pay me more than they absolutely have to.
And even if I refused to work unless I did get paid a million dollars an hour, my clients would surely, rightly, decide that I'm not worth that much, and simply fire me. This is exactly what we should do with authors who want too much copyright: Refuse to give them any rights that we deem excessive, and if they refuse to create, we happily let them wait tables or deliver pizzas. No creative work is so important that it justifies excessive copyright. We are better off without such works by definition.
Correction: it's primary purpose is to encourage creators to create and share what they create
A minor correction to that:
Copyright's purpose is to promote the progress of science, by encouraging authors to create and publish works, and by having minimal, if any, restrictions, in both scope and length, as to what the public can do with those works.
The second half -- that copyrights should be as minimal and short-lived as possible while still encouraging authors -- is important, since works are more valuable to the public the less protected they are by copyright. It's why there are limits to copyright, why copyrights expire (or at least are supposed to; the current law is pretty rotten), etc.
Well, I'm not quite clear on precisely what you were doing with that movie, but showing a movie in a classroom for educational purposes usually isn't a fair use, because it doesn't need to be; it generally falls under section 110 as a lawful performance. Fair use is a defense of last resort, remember. If something else is applicable, the issue of fair use will not be addressed.
I'd like to add to the "fair use" thing: if you plagairize, aven a tiny bit, that is NOT fair use.
Well, that's not the law. In fact, US copyright law has no right of attribution which would preempt an otherwise fair use. Not that it has much of a right of attribution to begin with.
And not that there should be any such right as a matter of copyright law. The history of US copyright law is pretty clear that authors are pretty strongly incentivized to create and publish without such a right, which suggests that the right is not necessary. Authors might like it, but if they're willing to create without it (as virtually all of them are, since so few are eligible for it even now), why bother giving it to them? It is bad public policy to impose a burden on the public when the public will receive no greater benefit thereby.
A Weird Al style parody would quite likely be a fair use. It's not that it would be a derivative work -- any kind of otherwise infringing activity is potentially a fair use, including derivatives -- it's that parodies make fun of the works they're based upon, which necessitates taking from the underlying work, parodies don't act as substitutes for the works they're based upon, but parodies usually can't get authorized. Take a look at Campbell v. Acuff-Rose for a good example of this sort of thing.
Which would exclude time shifting, space shifting, backups, etc.
Computer software backups, where you own the copy of the software you're backing up (n.b. owning a copy is different from owning a copyright), is covered elsewhere and thus is not fair use simply because there is no need for it to be. It probably would be if the specific exception were removed, though. But courts are lazy and will always take the easier solution, whereas fair use is a defense of last resort.
The number of people making use of copies made pursuant to fair use may be indirectly relevant. For example in the well-known Texaco case, a private library was copying copying journal articles for multiple patrons to avoid having to buy multiple subscriptions, and that was not a fair use.
But on the other hand, when you quote from a work, this is copying and is prima facie infringing (since there's no requirement that you copy an entire work for it to infringe). Usually quotations are fair uses (though not always) and they often appear in multiple copies that are not just passed out to multiple people, but are sold to them.
And of course, I think there's an easy hypothetical for time shifting. My mother is very disinterested in gadgets; rather than learn to use the remote control for her TV, she just tells someone else to turn it on or change the channel for her. Suppose that there was a TV show that she wanted to watch, but the only way that she could watch it would be if it were recorded from the broadcast. Suppose further that I too wanted to watch it, and also would have to record it in order to do so. If I were to use a VCR to make a new copy of the show, and I took that copy to my parents' house so that my mother and I could watch it together*, then this would seem to satisfy the earlier poster's broad requirements (an additional copy has been made, it is 'in the hands of' multiple people) but would pretty likely be a fair use. Or if you prefer, assume that I watched the tape, then sent it to my mother for her to watch, or that I made two copies, one for each of us to watch; I don't think it changes anything.
*I am aware that while making a new copy of the show by recording it to tape is prima facie infringement, a private performance of that copy is not infringing at all. But the earlier poster didn't seem to care how the additional copies were used, just that they were widespread.
No, no. You made a very sweeping statement. I have pointed out specific examples which contradict you. Therefore, your sweeping statement is wrong. There's nothing bad about cherry picking examples that demonstrate that you were incorrect; frankly it's absurd to imagine otherwise.
I invite you to make a more accurate statement about fair use, though it will likely contain lots of conditional elements, nuance, etc. which might not be up your alley.
There is no fair use involved in making unauthorized copies of a work.
Well, everyone seems to disagree with you. First, fair use is a defense to copyright infringement. Since all copyright infringement is necessarily unauthorized, all fair uses must also be unauthorized uses. If it were authorized, there'd be no infringement and no need for a defense to infringement.
Second, some types of activity which have been known to be fair uses involve making copies of works, such as time shifting and space shifting. Other types of activity which have been known to be fair uses involve copying portions of works, which is the same type of infringement, such as quoting from a work.
You may want to learn more about fair use before making incorrect statements about it in the future.
Because it's not well defined. Fair use is, in my opinion, an abomination in that it's a "law" that's not defined in anyway.
It is deliberately left undefined. A fair use is an otherwise infringing use which, under the totality of the circumstances, is fair. There are tests to help determine fairness, and there are trends as to the sorts of things that often are fair or unfair, but ultimately it is meant to be a a way of handling minor, otherwise infringing acts which should be allowed in the spirit of copyright, rather than the letter of the law; and it is a way of handling unusual and unforeseen acts.
If you want specific exceptions for specific things, whether they are narrow or broad, that's fine, but then they should exist in addition to fair use, since they could never suffice to replace it.
Remember, both law and equity are part of our legal traditions; don't be surprised that fair use is rooted in the latter.
And what's even better is when I try to cite the safe harbor laws or portion limits on Slashdot, I'm ridiculed over and over (not that I've ever practiced law but as a citizen it's the most I can find) despite my analysis being correct!
Fair use has no such things. I'm sorry that you are upset when people point this out to you. The best people can manage with fair use is to look at a number of cases, and try to discern trends. But each fair use case being unique, trends are of limited utility. There have been cases where small amounts of material were quoted from a work, and it was not fair, and there have been cases where entire works have been copied, and it was fair.
If you're really interested in trying to know when a use is fair or not, I'd suggest learning the test and reading a number of the leading cases on fair use, including the recounting of the facts of the case, so you know just what the particular use happened to be. But this will only at best put you at the level of legal scholars, lawyers, judges, etc. who get it wrong fairly often. Courts have a hard time working out fair use, and reversals on appeal are not uncommon. It's just a difficult thing, and it can't be helped without destroying fair use in the process.
Again, I think you'd be much better off leaving fair use (and your criticisms of it) aside, and instead pushing for additional statutory exceptions which would avoid your having to rely on fair use for things you wanted to do, while still leaving it in place for those who did need to rely on it.
For example, I would like to see an exception that made any otherwise infringing act non-infringing (or at least non-actionable) if it was engaged in by a natural person, and was not commercial in nature or for profit, without affecting secondary liability. The idea being that Alice could engage in file sharing, but Bob could not run a torrent tracker that carried advertisements, or required a fee to access, nor could Carol require that people adhere to a particular ratio of uploads to downloads, nor could Dave sell the software used for this. Thus while we might reduce the amount of money that could be exploited from a particular copyright, at least about all the money there was to be had would still be funneled to the copyright holder. It also legitimizes a lot of what people are doing already, kind of like repealing Prohibition.
The US Department of Inefficient Administration and Bureaucracy. I'd include a link, but they don't have a website; you have to go to the office in person.
Slashdot Mirror
I appreciate your coherent responses. I do disagree with you, but it is becoming clear that I don't disagree with you as much as I thought I did. And you're teaching me some things, which I appreciate.
Good debate is always fun.
It seems clear, from the way capitalism tends toward eventual oligopolies and monopolies, or the way that certain deals are made impossible by irrational greed or similar, that dogmatic adherence and deontological approaches and mechanical jurisprudence often warp good ideas into bad ones.
Indeed. I have no ideological attachment to capitalism, or any other sort of economic system. I value the efficiencies and other benefits that capitalism yields -- or that we're told it yields -- but if the system can throw itself off the rails due to a sort of positive feedback, which results in those benefits no longer accruing, then by all means, let's regulate it so that we can have the benefits and reduce the risks.
Similarly with copyright, I want to maximize the public benefit. However that is accomplished, within the bounds of the Constitution and our civil liberties, I don't much care. I'm willing to put anything on the table, and I'm willing to consider any sort of scheme, or scope and length of protection. The effect of copyright upon authors and publishers (whether professional publishers or self-publishing authors) is an important factor to be considered, but it is only a factor, with the ultimate issue being the public good. If granting a copyright for a million years would benefit the public more than any alternative, I'd support that. If abolishing copyright would benefit the public more than any alternative, I'd support that.
But I suspect, and maybe this is just a failure of imagination on my part, that an ideal copyright law would strongly resemble the 1909 Act, its amendments, and its predecessors more than it would the 1976 Act and its amendments. Well, except for organization; the older acts are not nearly so well organized as the current act.
the simple choice to include a particular kind of work in the statute is unique and paternalistic; the original statutes didn't cover a lot of what is today considered copyrightable (my favorite example is boat hulls--WTF??).
Oh, the boat hulls are in Title 17, but their chapter really has nothing to do with the Copyright Act. It's argued that it is sui generis pursuant to the commerce clause. But since it protects original useful devices, it probably isn't even constitutional, unless you think that the copyright and patent clauses are superfluous, and that Congress could ignore them in favor of the commerce clause instead.
A better example would be architecture, which was added to the actual Copyright Act in 1990 as part of Berne compliance, and it's worth considering now.
There has not been a material increase in the number of architectural works created and published since the enactment of the AWCPA, which appears to be attributable to its passage. This suggests that architects don't really respond much to the incentive of copyright. The buildings that get designed and built seem to do so according to natural incentives. They'd pretty surely get built just the same even in the absence of copyright for architectural works.
So we shouldn't grant copyrights for architectural works, since it has no beneficial incentivizing effect, but nevertheless causes harm to the public, as copyright inevitably does, yielding a net public detriment.
This is as opposed to, say, books, or sound recordings, or movies, where their authors do appear to respond strongly to the incentive of copyright, though we're probably granting them more than the minimum to incentivize them as well, which is not good when calculating the net effect for the public.
While deciding what class of works to protect or not may be unique, in that it is a case-by-case issue, I don't think it's all that paternalistic. We're not offering the subsidy of copyright to authors because we feel sorry for t
AFAIK nobody has even tried to find out what the optimal copyright term might be to do this.
Well, it'll tend to change over time, and it would be tricky to figure out, but I'd be satisfied with an honest and well-executed attempt to figure it out. There was an interesting paper by Pollock a few years ago that came up with 15 years.
My general strategy is to allow the copyright holder to decide. By requiring registration to get a copyright on a published work, and by having a term that is extremely short, say 2 years, with multiple renewals permitted at the end of the term, where registration and renewal require affirmative acts by the author and token payments, the author will likely only register works for which he was incentivized by copyright, and will likely only renew works up to the point where copyright incentivized him.
In practice, during the nearly two centuries that the US required registration and renewal, most creative works were not registered, and most of those that were, were not renewed. Putting these policies into place again (and dispensing with anything that would interfere with it, such as our participation in Berne) would also tend to align with how we handle patents (which must be applied for, and periodically renewed until they finally terminate, lest they terminate prematurely), and federal trademarks (which must be registered and periodically renewed).
It's not an unusual burden for authors, nor is it more than minimal to simply evidence a desire to have and keep a copyright on specific works, rather than as a blanket policy.
Thing is that the publishing industry isn't always very good at doing this. As evidenced by very popular works which had a hard time getting initially published.
Oh sure. Of course, self-publishing is still an option for the author who is certain his work will be a hit, but who cannot convince any third party publishers of this. And modern technology has made self publishing easier than it used to be.
Not that much different from publishers (and others) wanting extensions of existing copyright terms. Even though all parties were happy with the original deal decades ago.
Well, I'm interested in improving copyright law for the benefit of the public. If maximizing the public benefit is good for authors and publishers, or bad for them, I'm not very interested, save for what that means for the public. I don't want a policy that is dictated by either authors or publishers, but if it is in everyone's interests to give them some particular aid, that's perfectly okay. They shouldn't be listened to, but they're not the enemy either.
Specifically, he says that securing publication is "half" the reason we have a copyright system in the first place. So I'll say it again: you don't have to publish at all to secure a copyright (as distinguished from patent law), so that must not be "half" the reason we have copyright.
First, I said that encouraging creation and publication was half the reason. The other half of the rationale of copyright is to have as little copyright as possible, if any at all. So I guess that encouraging publication would be more like one quarter.
Second, I think you're assuming that the current Copyright Act is synonymous with good copyright policy. I'd disagree. I've already discussed my reasoning for this in a recent reply post.
A better Copyright Act would grant a provisional right for unpublished but unabandoned works upon creation, so that an author who seeks to publish is not beaten to the punch by someone who has gained access to the manuscript. However, should an author abandon his work unpublished, the work should enter the public domain rapidly in the hopes that someone will do what the author did not, and get that work to the public.
Note that pre-1978 US copyright law only granted protection to registered, published works. Publication was key. But if an author was willing to publish without registering, then he got no copyright. This was appropriate since copyright was meant to encourage creation and publication that otherwise would not occur. An author who would publish without registration apparently needed no encouragement in the form of copyright, so he didn't get one.
This is the sort of thing we need to get back to.
I happen to believe that people will often create without any incentive at all--forgetting this leads to all sorts of strange interpretations of copyright law. The law wasn't made because without it, no one would create. The law was made to incentivize creation, so that it would happen more often. So anything that makes it happen less often would be against Constitutional policy, regardless of whether creation would stop altogether.
Well, I wouldn't say without any incentive at all. There are many 'natural' incentives to create and publish. Some people want to be famous. Some people create art for art's sake. Some people want to make money, but manage to do so in ways that don't involve copyrights (e.g. selling specific copies, taking commissions, providing artistic labor, patronage, etc.). In the case of this discussion, we are all writing copyrightable posts, but I sincerely doubt that any of us would not have written, online discussions even if there were no such thing as copyright at all.
Copyright is just an additional incentive, so regarding it being meant to get creation to happen more often, I agree with you. But that's not enough. We don't merely want creation to happen more often. We want works to be created and published more than they would be otherwise, since a created but unpublished work is of little value to the public. And we want that work to be in the public domain as soon as possible, since any given work is more valuable to the public when in the public domain, than when copyrighted. And we want the copyright to be as minimal in scope as possible, while still acting as an incentive, since more freedom for the public is better than less.
Merely maximizing creation and ignoring the rest would be bad policy.
So while one copyright law might encourage less creation than another, that's not the only basis on which to judge them. It is entirely possible that a copyright act in which there was, oh, 90% as much creation as we currently have, but which had drastically shorter terms, a greater rate of publication of created works, more freedom for the public, etc. could easily be superior to what's on the books today.
He is free to assert that the law is a bad idea, but his position that it is bad because it somehow violates basic contract principles is simply untenable. There are so many laws on the books inv
I encourage you to re-read the text. It says that creators are to be granted exclusive rights for a limited period.
A minor nit: It says that creators may be granted the rights, not 'are to be granted.'
The copyright clause grants Congress a power which it may choose to exercise, or not, at its whim; provided that if it does exercise the power, it stays within the bounds set by the clause.
You've confused copyright with patents. A patent must be filed (published) in order to receive protection.
The right of first publication inheres on creation of a work. This is a common law right pre-dating the Statute of Anne
Well, that's an extremely common misunderstanding, actually. Remember, the House of Lords reversed Donaldson. Remember also that under the stationer's copyright, it was the publishers, not the authors, who had the sole right to publish. It was only after the Statute of Anne had become law that the publishers claimed that the authors had infinitely long-lived copyrights at common law. Which was entirely because the publishers had gotten their authors to sign contracts saying that all the rights of the author had be sold to the publisher in perpetuity. And even that was only after the publishers had tried, and failed, to get the statute amended to provide them with longer terms. No one had ever, ever had the idea that there was a common law copyright until long after Anne had been enacted.
But remember, I was discussing policy.
I will agree that it is certainly good policy to protect authors with regard to their manuscripts. A work does not usually spring like Athena, full-formed from the brow of the author. Usually it takes a significant amount of time, one draft followed by another, until the work is finally finished, or abandoned. If the work is finished, the author may decide to try to have it published, or abandon it. And having made attempts to publish it, whether by convincing a publisher to do it, or by self-publishing, the author may nevertheless abandon the work if those attempts are unsuccessful.
I say that if an author has abandoned his work to be left unpublished, then there is no public benefit in granting that decision the force of law to back it up. The public benefits when it can enjoy a work, when it can preserve that work for posterity, when it can make use of that work in the preparation of other works, and so forth. But if the greatest book ever written in the history of the world is sitting in a shoebox in a closet in a house in Peoria, and if the author takes the MS out and burns it in the fireplace, then I say that the public has not enjoyed even the tiniest iota of benefit from that work. And since public benefit is the touchstone of copyright policy, that author, having abandoned the work, should not have continued to have rights in it. The world would have been better off if someone had broken in, stolen the MS, and published it against the wishes of the author.
So I stand by my position that the policy goals of copyright are to encourage the creation AND publication of works, but to grant the least amount of protection necessary in order to accomplish the most amount of encouragement, so that the public is most able to enjoy the works without interference.
It's okay for you to believe that, but the Constitution says otherwise. Monopolies are not granted lightly, so the Constitution seems to say precisely that innovators should be treated well merely for innovating.
No, it says that Congress may -- it's not obligated, so there's no 'should' -- grant certain rights to authors if it promotes the progress of science. Secret books do not accomplish this as I've already discussed.
Your cold utilitarianism suggests to me that if you didn't graduate from Chicago, you would nevertheless have fit right in.
That's funny. I always viewed copyright as on the road to socialism, what with it being a system of government-based subsidies meant to benefit the public at large, though without abandoning free markets altogether either. And I like it like that. I'm just very hard-nosed about maximizing public benefit. I am neither pro- nor anti-author or publisher. Whatever they can get for themselves while the public benefits as much as possible is fine with me.
The author was incentivized to create the work, but the incentives are both backward- and forward-reaching. If people with good ideas s
I'm saying that it should not have been in the law to begin with, and steps should be taken as soon as possible to limit the pernicious effects of this law. Certainly it should not be present, nor any analogue, in a reformed Copyright Act.
the very basis of copyright in the United States is encouragement of innovation.
Well, that's half anyway; really the basis of copyright is encouraging authors to create and publish the most, in exchange for the least copyright, so as to maximize the net public benefit. Both creation and publication are necessary elements of good copyright policy. A work cannot benefit the public unless it is both created, just so it exists, and published, so that people beyond the author can actually get and use it.
When an author has created a work that they sell after the fact, however, they absorbed a considerable amount of the risk by taking the time to create something without any pay at all. ... But when they come up with something marketable, suddenly publishers want control.
Well sure. The authors are self-interested; having created a work, they want the benefits that a professional publisher can bring to the table -- inexpensive printing in bulk, good marketing, arrangements with lots of retail operations to get the work out to the public -- without wanting to cede the rewards that the work can bring them.
And likewise, the publishers are self-interested, perhaps being able to obtain a good work without having incurred any risk in its creation (though this is not always so; the recording industry has some interesting financial practices) they'll want to invest as little as possible into getting it into the marketplace, but get as much of a reward from this as possible.
No one can force the two parties to make an agreement they don't find acceptable. And there are plenty of authors out there. And plenty -- though somewhat fewer -- publishers. And there is the option to self-publish.
So while each side goes into negotiations seeking to get the best deal for themselves, mutually agreeable deals are entirely possible, with plenty of alternatives if it doesn't work out.
I don't see a problem with any of this.
Unfortunately, a lot of other IP industries have yet to catch on that creators should be treated well.
Creators should not be treated well merely because they are creators. Certainly it is not in the interests of any publisher to treat artists one iota better than the bare minimum they can get away with. A generous publisher runs a risk of being a badly run business, which leads to being an ex-publisher. Of course, I'm not saying that the publisher should go about whipping its authors, just that once an author worth keeping happy is made happy, it isn't necessary to make him any happier. There's no percentage in that. A publisher who wastes his resources doing that will be at a disadvantage in the marketplace, and either go out of business, or have to stop being so nice.
Anyway, the ability to take back a work that was not made for hire, but has instead been licensed, is not about deal-breaking. It is about preventing companies from taking a disproportionate share of the profits from the owner, who is the person we intended to incentivize.
It is about nothing other than deal-breaking.
The author was incentivized to create the work, because he did in fact create the work. The Constitution mandates that the copyright initially vest in the author. What the author decides to do with it after that point is entirely up to him. If he sells it for a mess of pottage, then that's his mistake.
But if a property becomes massively successful, why should a bunch of managers and lawyers who probably weren't even born when the property was created be entitled to perpetual profits?
Because the author apparently misjudged the value of his copyright. He should've held out for more. The publisher apparently was the wiser party to the agreement. But it was a voluntary agreement. No one twisted the arm of the author. He was happy enough with the deal to sign on the dotted line. Hindsight is no excuse for breaking the deal without consequences.
Remember also that the mere creation of a work isn't the only
Software has a lot of gaps in its copyrightability, actually.
It's not a pictorial, graphic, or sculptural work, which is what food would have to be, so the utility doctrine doesn't apply to it.
But the copyrightable portions of software cannot include ideas, processes, systems, etc. So if Windows has a sorting algorithm in it, the algorithm itself is uncopyrightable; at best only the particular expression of the algorithm can be copyrightable. This wouldn't preclude someone else from using the same algorithm elsewhere, copying it straight out of Windows, provided that they expressed it differently.
Nor can the copyrightable portion of software be dictated from functional concerns. Copyrightable works must be creative, and that means that creative choices must have been made in determining the particular expression at issue. If, in order to run on an x86 IBM-compatible computer, some parts of Windows _have_ to be written a particular way, then they're not copyrightable.
Nor can the copyrightable portion of software include material where there is only one way, or only a small number of ways to express a particular idea. That's due the merger doctrine, since if a copyright would in effect confer control over uncopyrightable ideas (since there's so few ways to express it), it cannot be valid.
And I could go on.
But really, copyrights and functionality aren't meant to go together very well, and in the case of software, which straddles the line between expression and machine, this tends to mean that a big program like Windows is actually riddled with holes in its copyright protection.
The Kirby heirs are doing this pursuant to 17 USC 203, if anyone is interested.
The gist of it is, for works not made for hire, where the author licensed or sold his copyrights to someone else (except via a will), the author, or his heirs or estate, can get together and terminate the license or sale. It has to be done within a certain window of time, and it requires a sufficient number of heirs to agree to it, and there are some procedural steps that have to be taken. And this can be done even if the author signed an agreement that expressly said that he would not do this.
I am all for reforming copyrights to something sensible in both length and scope, and I am concerned at the political power wielded with regard to copyright by publishers. However, I have to side against the authors on this sort of thing. While it might be fun to see someone stick it to Disney, it's ultimately a bad policy.
If an author willingly signs an agreement transferring or licensing his copyright to someone else, then that agreement should remain valid. If the author wants to reserve a right to terminate the transfer or license because some sort of condition arises (e.g. licensing fees are no longer being paid), or arbitrarily at some point in time, then it should be written into the agreement. No one is forcing authors to sign these things; no one is forcing authors not to have an attorney help them out with it. If a contract is one sided, don't sign it. Hash out a more agreeable agreement or walk away. And if your bargaining positions are unequal, well, welcome to the real world; this happens a lot.
To have a law that mandates that authors can cancel their contracts at will, with no particular repercussions for them is offensively paternalistic. Authors should not be universally treated like children, able to escape their commitments. They are not any more or less sophisticated in their business dealings than any other ordinary person, who is not treated so astonishingly favorably by the law.
Further, it is unjust. While an author certainly is essential in the success of a particular creative work, publishers also often make invaluable contributions. To the extent that their agreements with authors permit them to do so, I think it is completely fair for them to share greatly in the rewards. Publishers that contribute little will tend to not be in as favorable a position to benefit as the publishers that contribute a lot. Authors who don't want to have to pay or share profits with publishers can always self-publish. It is entirely doable, but the difficulty tends to be off-putting. So long as it is the decision of the parties involved, and not of Congress, it's okay.
In this case, suppose that Kirby had never worked for a comic book company, but instead had started his career by self publishing comics. Would he have achieved so much success, thereby indicating that his estate deserves to profit from his comics and characters alone? I doubt it. So did Kirby, apparently; he chose not to go that route, and instead worked for publishers for whatever pay or other compensation both sides found agreeable.
For the Kirby estate to wrest away control of the work Kirby did under contract with Marvel, in contravention of contracts willingly entered into by both sides that state otherwise, and with no other penalties is just not fair, and the law should not permit it. It is no different than if Alice sold land to Bob, Bob invested in the land raising its value, and then Alice snatched it back contrary to the original agreement.
If you want to be able to end an agreement after you make it, make that part of the agreement. Otherwise, well, you'll know better next time.
In history, brands have become genericized because the name became synonymous with the product due to lack of a descriptive name.
No, not at all. Xerox is constantly on the verge of losing their mark for photocopiers, and that's an existing generic name. They spend a lot of money and do a lot of work to try to keep their mark alive, and if actually challenged, they could still lose it. Ditto Kleenex (paper tissues) and for quite some time Sanka (decaffeinated coffee). Google has written the standard nasty letters to dictionaries, because they're afraid of the verb 'google,' meaning 'search on the Internet.'
It's merely good practice to add the generic name for the product alongside the brand name so as to reduce the chances that customers will think that the brand name is the name for the actual good. Hence 'Levi's blue jeans.' It's not actually necessary, however, which is why you don't see 'iPod personal media players,' just 'iPods.'
Most people in the southern US refer to sweetened carbonated beverages as "coke." Would you be in favor of the legal genericide of that particular trademark?
In the South? Where I happen to originally be from, and where I too have picked up this habit? Yes. Coke is as generic a term in that area as 'soda,' or as 'pop' is in wherever the hell people say such a silly thing. However, the COCA-COLA mark would remain alive.
I personally think that trademarks are important for consumer protection, so that the standard of that product can be maintained and assured.
I agree. However, that is no excuse to preserve a trademark when it has become generic, and the customers no longer expect all products using the generic name to be of the same standard. I expect all Heinz ketchup to be of the same quality. I don't expect all ketchup to be of the same quality regardless of source, however.
Vintners in Champagne have been vigilant over the last few hundred years that products sold as Champagne be of a consistent quality.
That's great. Then they should have a regional mark along the lines of 'Made in Champagne, France' or a certification mark like 'CIVC Approved' or something. And of course each vintner can have their own mark and label.
But that doesn't change what the public believes champagne is -- sparkling wine -- not sparkling wine that is from one particular place, but not another, even if the two are basically indistinguishable.
but if you have no influence over the quality, would you want another producer to be able to sell a product with a brand you have maintained for your entire life?
It isn't really a brand. It's a generic name. That's the problem. It can only be a brand if people perceive it as one. For most geographically named food items, people don't. Swiss cheese is dry cheese with holes in it, but it needn't be cheese that is actually from Switzerland. No one goes to the supermarket or the deli and asks for the dry, holey cheese. They ask for Swiss. If it happens to be from Vermont, or Wisconsin, that's fine. I doubt many people care all that much.
I mean, I doubt that you get together with your friends and start making airline reservations if someone suggests going out for ethnic food on the basis that Chinese food can only be had in China, or Italian food can only be had it Italy.
I grew up thinking Parmesan was ho-hum because Kraft can sell their shitty dairy product and lead people to believe that's what cheese is.
See, that's where trademarks are useful. Not in protecting a mark on Parmesan cheese, as being only that made in Parma, that's silly. But in protecting the Kraft mark so that you know to avoid them because they're crappy. I'll bet if you looked around you could find a domestic Parmesan that was just as good as the imported. If the cheeses from different sources can turn out to be indistinguishable to the customer, why should the first one get to use the generic name, and the second one get punished merely due to an accident of geography or history?
The product sparkling white wine is synonymous with champagne for most people. Feel free to try this out by giving random people a cup of such wine from any old place and asking them to tell you what they call it. Since consumer expectations are what controls, that's matters. Vintners can like it or lump it.
Just because lots of people recognize a double-decker burger with lettuce, onions, cheese, pickles and a weird pinkish-orangish sauce as a Big Mac, doesn't mean that anyone should be able to sell a Big Mac.
Actually, that is exactly what it means.
If people generally call all such burgers Big Macs, then the term has become generic, and anyone can sell their burgers of that type as Big Macs.
This isn't new: Escalator, elevator, shredded wheat, kerosene, popsicle, cellophane, trampoline, etc. all were trademarks once upon a time, indicating that goods with those marked came from particular manufacturers. But once the public decided that those were generic names for products regardless of manufacturer, that's what they became. And that's fine, there's nothing wrong with this. It is annoying for the manufacturers who lost their marks through popularity, but who cares about that?
Champagne is champagne is champagne. It doesn't matter where it is from. If you want to indicate where it is from, and you want to make sure that people cannot make claims about the geographic origin that would deceive the public, then put a label on the bottle saying something to the effect of 'Made in the Champagne area of France.' If you just say champagne, no one is going to know where it is from, and the fault is yours for not being sufficiently clear.
Companies have a right to enforce their brand, and geographical regions have a right to regulate the quality and authenticity of any product bearing a claim of origin in that region. This is the most defensible type of intellectual property.
Why?
Certainly, I have no problem with laws that avoid confusion or deception of customers as to products that claim to be from a particular place. Wine made in France shouldn't be labeled as American wine, nor vice versa. But if customers understand a particular term to refer to a product itself, rather than to a claim of origin, then there's no confusion or deception to protect against. Thus, because champagne is a sort of wine, it is perfectly fine to have French champagne as well as American champagne. (Or if even that wouldn't suffice, as would be the case with american cheese made in Canada, for example, then a 'Made in' or 'Product of' label might be required for clarity)
It would actually harm consumers and the market if the latter were not allowed to be so labeled. People who wanted the product called champagne, but who were not picky about where it came from, who would just look for the word 'champagne' on the label, just like someone might look for 'soda' or 'coffee,' would wind up paying monopoly prices since wines made outside of a specific part of France couldn't bear a thoroughly generic label that described them aptly.
As with trademarks, the lesson to those who would claim rights is that too much success can lead to genericide. If the French don't want people using the generic name for these wines, then let the French come up with a brand new name, just for them to use. Passing silly laws to combat the common usage of certain terms by the public is both pointless and mean.
It sounds a little silly, but how different is it from other copyrights?
Copyrights cover creative works; it's patents that cover useful arts. Food is rendered uncopyrightable due to utility. Methods of preparing food, i.e. recipes, are uncopyrightable as well. While inventive chefs could seek patents, and some do, it seems to be fairly uncommon, and the requirement of novelty would make it useless here anyway.
What this really sounds like to me is a designation of origin issue, which is somewhat like a trademark. Personally, I'm not a big fan of them. Champagne, to me at least, is a product which can be made in many different places around the world. I don't mind putting a national or regional appellation on it (French champagne, Australian champagne) if it is applied equally to everyone, but I don't like the idea that it can only be called champagne at all if it is from a specific part of France, regardless of how similar or even identical it might be with the same product made elsewhere. This, IMO, doesn't inform customers, but misleads them, and doesn't aid the market, but hinders it (by implicitly discouraging competition by outside manufacturers).
To be fair--pun intended--I don't think the OP has any great hatred of fair use. My impression is that s/he just doesn't think that it's well-defined enough to depend on, much less teach to children.
Oh sure. It is certainly not well-defined, and probably very hard to teach to children, but it is important enough that if you were going to teach children about copyright laws for some reason, it should be included. Given that it ultimately comes down to whether or not it seems fair, with some various issues to think about in deciding that (e.g. it's fair to do time shifting because it does no harm to anyone, but file sharing is likely unfair, as it is a substitute for the legitimate market, and doing that substitution does leave the copyright holder somewhat worse off), I think the kids could get a rough handle on it.
My concern is simply that fair use needs to be left alone. If someone finds it too vague for their liking, rather than criticize or try to alter fair use, it's better to make a separate exception for the issues they're concerned about, leaving fair use intact. Trying to make fair use well-defined would kill it dead.
Someone needs to get rid of the term "fair use". It implies there's a conflict between two content creators, and one of them will be given a begrudging "fair" chance of using the other's content. Here in Finland, we have a more appropriate term for the same legal concept: "the right to quote".
It's a perfectly good term.
First, a fair use can be any kind of otherwise infringing use, though not any particular kind of use will necessarily be fair. It need not be limited to quotations, which anyway may or may not be fair depending on the particular case at hand. While fair use is a last resort, it is meant to be a catch all, avoiding situations where the law of copyright conflicts with the spirit of copyright.
Second, fair users can either be authors or can be end users of works; the term doesn't imply what you infer.
We have a specific Copyright Council that has issued tons of legally sound (but not legally binding, as they operate on what has been unilaterally told to them and they won't investigate the claims further than that) opinions and recommendations of what, on those specific cases, is appropriate amount of quotation and what is not. For free. Anyone can send them questions, in free-form letter or email, and they give out statements. The statements are all there on the Web for people to browse. A great resource for everyone wondering whether or not something is okay.
That's great, but US federal courts, which hear the vast majority of copyright suits in the US, are prohibited by our Constitution from doing this.
A separate body could be set up to give opinions that had no legal weight to them, but this seems expensive for something that could not safely be relied upon. Especially if you didn't limit it to just copyright (which is only of interest to a small number of people, assuming sensible copyright laws). Plus, since courts themselves struggle with fair use issues all the time, it seems unlikely that such a body could offer accurate information without being annoyingly conservative about it. I don't need my tax dollars paying for someone to give me advice, who then tells me not to bother, simply because they want to avoid any possible risk of error on their part. Most of the places that try to advise about the limits of fair use engage in this already, so it seems likely to me that we'd see more of it. I'd rather get honest advice, even if that means getting told that I'd have 50:50 odds of the particular behavior being lawful, or whatever.
No need to take my word for it. Attribution was not present in US copyright law until 1990. Since then, it is only available for a very small set of works -- check the definition in 17 USC 101 for a work of visual art, to see what is covered -- and even then the attribution right is subject to fair use.
And why should we even have this much?
There hasn't been a big explosion, AFAICT, in the quantity of eligible works since the law was passed in 1990. This suggests that the creators of such works, e.g. fine artists, sculptors, art photographers, etc., are not incentivized to create and publish their works because such a right is available. And there's not really a dearth of such creators now, nor before the law came along, which is attributable to copyright law. There is no attribution right for the vast majority of works, but the US is awash in non-eligible works now, and was before the law was enacted.
Granting copyrights imposes a burden on the public, and has a public cost. This is acceptable if granting the copyright produces a benefit to the public which outweighs that cost. In the case of attribution rights, it seems that they have the inevitable burden, with no commensurate benefit.
So while some creators might want an attribution right, the fact that they are perfectly willing to create and publish works without it leads me to oppose such a right, since it would be a huge waste perpetrated against the people.
It's kind of like how I'd like my clients to pay me a million dollars an hour. Since I'm willing to settle for less, no one is foolish enough to pay me more than they absolutely have to.
And even if I refused to work unless I did get paid a million dollars an hour, my clients would surely, rightly, decide that I'm not worth that much, and simply fire me. This is exactly what we should do with authors who want too much copyright: Refuse to give them any rights that we deem excessive, and if they refuse to create, we happily let them wait tables or deliver pizzas. No creative work is so important that it justifies excessive copyright. We are better off without such works by definition.
Correction: it's primary purpose is to encourage creators to create and share what they create
A minor correction to that:
Copyright's purpose is to promote the progress of science, by encouraging authors to create and publish works, and by having minimal, if any, restrictions, in both scope and length, as to what the public can do with those works.
The second half -- that copyrights should be as minimal and short-lived as possible while still encouraging authors -- is important, since works are more valuable to the public the less protected they are by copyright. It's why there are limits to copyright, why copyrights expire (or at least are supposed to; the current law is pretty rotten), etc.
Well, I'm not quite clear on precisely what you were doing with that movie, but showing a movie in a classroom for educational purposes usually isn't a fair use, because it doesn't need to be; it generally falls under section 110 as a lawful performance. Fair use is a defense of last resort, remember. If something else is applicable, the issue of fair use will not be addressed.
I'd like to add to the "fair use" thing: if you plagairize, aven a tiny bit, that is NOT fair use.
Well, that's not the law. In fact, US copyright law has no right of attribution which would preempt an otherwise fair use. Not that it has much of a right of attribution to begin with.
And not that there should be any such right as a matter of copyright law. The history of US copyright law is pretty clear that authors are pretty strongly incentivized to create and publish without such a right, which suggests that the right is not necessary. Authors might like it, but if they're willing to create without it (as virtually all of them are, since so few are eligible for it even now), why bother giving it to them? It is bad public policy to impose a burden on the public when the public will receive no greater benefit thereby.
A Weird Al style parody would quite likely be a fair use. It's not that it would be a derivative work -- any kind of otherwise infringing activity is potentially a fair use, including derivatives -- it's that parodies make fun of the works they're based upon, which necessitates taking from the underlying work, parodies don't act as substitutes for the works they're based upon, but parodies usually can't get authorized. Take a look at Campbell v. Acuff-Rose for a good example of this sort of thing.
Which would exclude time shifting, space shifting, backups, etc.
Computer software backups, where you own the copy of the software you're backing up (n.b. owning a copy is different from owning a copyright), is covered elsewhere and thus is not fair use simply because there is no need for it to be. It probably would be if the specific exception were removed, though. But courts are lazy and will always take the easier solution, whereas fair use is a defense of last resort.
The number of people making use of copies made pursuant to fair use may be indirectly relevant. For example in the well-known Texaco case, a private library was copying copying journal articles for multiple patrons to avoid having to buy multiple subscriptions, and that was not a fair use.
But on the other hand, when you quote from a work, this is copying and is prima facie infringing (since there's no requirement that you copy an entire work for it to infringe). Usually quotations are fair uses (though not always) and they often appear in multiple copies that are not just passed out to multiple people, but are sold to them.
And of course, I think there's an easy hypothetical for time shifting. My mother is very disinterested in gadgets; rather than learn to use the remote control for her TV, she just tells someone else to turn it on or change the channel for her. Suppose that there was a TV show that she wanted to watch, but the only way that she could watch it would be if it were recorded from the broadcast. Suppose further that I too wanted to watch it, and also would have to record it in order to do so. If I were to use a VCR to make a new copy of the show, and I took that copy to my parents' house so that my mother and I could watch it together*, then this would seem to satisfy the earlier poster's broad requirements (an additional copy has been made, it is 'in the hands of' multiple people) but would pretty likely be a fair use. Or if you prefer, assume that I watched the tape, then sent it to my mother for her to watch, or that I made two copies, one for each of us to watch; I don't think it changes anything.
*I am aware that while making a new copy of the show by recording it to tape is prima facie infringement, a private performance of that copy is not infringing at all. But the earlier poster didn't seem to care how the additional copies were used, just that they were widespread.
No, no. You made a very sweeping statement. I have pointed out specific examples which contradict you. Therefore, your sweeping statement is wrong. There's nothing bad about cherry picking examples that demonstrate that you were incorrect; frankly it's absurd to imagine otherwise.
I invite you to make a more accurate statement about fair use, though it will likely contain lots of conditional elements, nuance, etc. which might not be up your alley.
There is no fair use involved in making unauthorized copies of a work.
Well, everyone seems to disagree with you. First, fair use is a defense to copyright infringement. Since all copyright infringement is necessarily unauthorized, all fair uses must also be unauthorized uses. If it were authorized, there'd be no infringement and no need for a defense to infringement.
Second, some types of activity which have been known to be fair uses involve making copies of works, such as time shifting and space shifting. Other types of activity which have been known to be fair uses involve copying portions of works, which is the same type of infringement, such as quoting from a work.
You may want to learn more about fair use before making incorrect statements about it in the future.
Because it's not well defined. Fair use is, in my opinion, an abomination in that it's a "law" that's not defined in anyway.
It is deliberately left undefined. A fair use is an otherwise infringing use which, under the totality of the circumstances, is fair. There are tests to help determine fairness, and there are trends as to the sorts of things that often are fair or unfair, but ultimately it is meant to be a a way of handling minor, otherwise infringing acts which should be allowed in the spirit of copyright, rather than the letter of the law; and it is a way of handling unusual and unforeseen acts.
If you want specific exceptions for specific things, whether they are narrow or broad, that's fine, but then they should exist in addition to fair use, since they could never suffice to replace it.
Remember, both law and equity are part of our legal traditions; don't be surprised that fair use is rooted in the latter.
And what's even better is when I try to cite the safe harbor laws or portion limits on Slashdot, I'm ridiculed over and over (not that I've ever practiced law but as a citizen it's the most I can find) despite my analysis being correct!
Fair use has no such things. I'm sorry that you are upset when people point this out to you. The best people can manage with fair use is to look at a number of cases, and try to discern trends. But each fair use case being unique, trends are of limited utility. There have been cases where small amounts of material were quoted from a work, and it was not fair, and there have been cases where entire works have been copied, and it was fair.
If you're really interested in trying to know when a use is fair or not, I'd suggest learning the test and reading a number of the leading cases on fair use, including the recounting of the facts of the case, so you know just what the particular use happened to be. But this will only at best put you at the level of legal scholars, lawyers, judges, etc. who get it wrong fairly often. Courts have a hard time working out fair use, and reversals on appeal are not uncommon. It's just a difficult thing, and it can't be helped without destroying fair use in the process.
Again, I think you'd be much better off leaving fair use (and your criticisms of it) aside, and instead pushing for additional statutory exceptions which would avoid your having to rely on fair use for things you wanted to do, while still leaving it in place for those who did need to rely on it.
For example, I would like to see an exception that made any otherwise infringing act non-infringing (or at least non-actionable) if it was engaged in by a natural person, and was not commercial in nature or for profit, without affecting secondary liability. The idea being that Alice could engage in file sharing, but Bob could not run a torrent tracker that carried advertisements, or required a fee to access, nor could Carol require that people adhere to a particular ratio of uploads to downloads, nor could Dave sell the software used for this. Thus while we might reduce the amount of money that could be exploited from a particular copyright, at least about all the money there was to be had would still be funneled to the copyright holder. It also legitimizes a lot of what people are doing already, kind of like repealing Prohibition.
The US Department of Inefficient Administration and Bureaucracy. I'd include a link, but they don't have a website; you have to go to the office in person.