Google has made absolutely ZERO attempt to ascertain the identity or whereabouts of the rightsholders of these "orphan" works. I'm one of them. I have been notified by Google about each of my in-print books (five in all), but NONE of my parents' books, even though they were published by HarperCollins, who used to send me royalty checks for those books and would no doubt be happy to tell Google how to reach me.
Why don't you tell Google how and why to reach you? The whole 'orphan works' problem here would be taken care of quite easily if the US reverted back to our traditional practice of making copyright opt-in for published works. If an author cares about controlling the work, perhaps because he wants those royalty checks, he can surely spare a few minutes periodically to apply for copyrights, renew the copyrights, and to keep his contact information up to date and on file with the Copyright Office. If he sells or exclusively licenses the rights, then part of that transaction would again involve updating the Copyright Office. So long as the author cares, he can keep his copyright for only a token investment of time and money -- much like we do for patents or trademarks. If the author doesn't care or stops caring, he'll likely fail to apply for a copyright or fail to renew it, allowing the work to enter the public domain sooner. And after all, if the author doesn't care about his copyrights, who are we to disagree with him?
This worked fine for about 200 years, and it was a mistake ever getting away from it. We need to get back to this right away, making all the necessary changes in the law (e.g. withdrawing from Berne) in order to do so.
Well, in the US at least, mere labor is insufficient for copyright to arise. Rather, a copyrightable work (or the copyrightable portions thereof) must be original and creative. Here, Google is engaged in slavish copying; they are copying extant works, so their scans are not original, and they are copying as exactly as they can, so they are not creative.
and text as a product of OCR
Again, though, they are copying as exactly as they can manage. This means the machine readable text will also not be independently copyrightable.
However, the uncopyrightable copies -- that is, the tangible media on which the scans and text are stored -- are Google's property, and they are not obligated to give anyone access to them unconditionally, much less at all. So while Google lacks a copyright on their copies of public domain works, they can condition access to those copies on users promising not to make their own copies from the scans or text, and to not engage in distribution of such copies. If a user did it anyway, it wouldn't be copyright infringement, but breach of contract.
Of course, Google could allow unrestricted access to those works just as easily. Given their 'don't be evil' ethos, that would be the appropriate thing for them to do.
It needn't be one rich guy. It could be a group of several (or hundreds, or thousands, or more) people of more moderate means. If an author had a thousand fans, each fan could chip in $5 to an escrow account, with the money only being released when the author turned in a short story that fit the objective requirements (e.g. word count, theme, style) set by the group of patrons before some deadline. Of course, it will take work for an author to get enough fans starting out that eventually some of them would pay, but that's a problem in any system where artists want to get paid. Van Gogh had the benefit of strong European copyright laws, but only ever sold one painting in his life. There's just no easy way to get popular and sustain it.
So in 17th Century Europe you had playwrites coming up with pretty much rehashes of the same theme over and over again because that is what the patrons of the arts liked and would pay for.
You've described the summer blockbuster movie genre -- i.e. 'lots of crap blows up real good' -- perfectly.
Copyright rewards only popular works, even if they are crappy rehashes of the same old thing. It doesn't have anything to do with what's actually good. Nor should it, since the government is the last entity that we want making such decisions for anything beyond the odd public building, war monument, or building code.
The study group's mission statement makes the same point, saying that it wants to give consumers true ownership of content while still "preserving business models based on the sale of private goods where the number of items in circulation equals the number sold and the number of users of each item is naturally, reasonably, and unavoidably limited."
Why would we want to preserve these business models? Given that it is everyone else who is being asked to shoulder the burden of propping them up, what good are they to us that they deserve it?
Copyright may be desirable under the right circumstances (i.e. a copyright law that produced social benefits greater than those produced by any alternative, or no copyright law at all), but at least it can be easily changed according to the needs of society, assuming the government is legitimate and not corrupt. DRM -- which is what this quite obviously is, just with a different name -- is too subject to the whims of creators and publishers, rather than the public, and too fixed once in place. Attempts to push DRM need to be strangled as soon as possible, although we must respect that free speech includes the right to use DRM.
So a better alternative would be a copyright law promulgated by a legitimate and non-corrupt government, which put the needs of the public first (i.e. the need for more works to be created and published so that the public can get access to them, and the need for such works to be as useful to the public as possible, which means uncopyrighted, or at worst, minimally copyrighted, in both scope of rights, and duration of term); where the grant of copyright on a work would be conditional on neither the copyright holder, nor anyone authorized by the copyright holder, applying any sort of DRM to copies, performances, or displays of the work made available to the public; where if DRM was so applied, the copyright would be revoked; and where the government would cooperate with the public to crack DRM systems and freely republish works which had been protected by DRM, and were therefore, in the public domain.
It'll take some work to accomplish this. Various treaties (WIPO, Berne, the UCC, etc.) set up minimum standards that interfere with meaningful reform efforts (e.g. legalizing the breaking of DRM, terms shorter than life+50, resurrecting formalities so that an author must opt-in to copyright for a particular work or else forgo it). We'll have to withdraw from these treaties, but to be honest, they're not really that important anyway; it is in the interests of each country to unilaterally offer national treatment (i.e. a country should not discriminate on the basis of nationality with regard to any aspect of copyright law), without minimum standards that compel two differently situated countries to enact the same laws as though they were perfectly alike.
There's a reason why the amendment to the US Constitution guaranteeing freedom of speech is first; it's the most important.
No.
Congress passed a Bill of Rights comprised of twelve articles as proposed amendments to the Constitution, which were then sent out to the states for ratification. Only numbers 3-12 were ratified at the time, and they became Amendments 1-10. The second article languished for about 200 years but eventually got enough states ratifying it by the 1990's to become the 27th Amendment. The first one has yet to get enough votes, and likely never will, although it actually got very close at the time, which would have made it the First Amendment.
And in some of the drafts, free speech comes in far from the beginning.
So don't think that the ordering really means anything; it doesn't.
Since the creator of the work has the first copy and never sells copies except under contract, every copy is either authorized by the creator or have, at some point, been a breach of that contract.
No. Only the parties to a contract are bound by it. Suppose that one day pirates break into my house and make a copy of my copy of the work despite whatever reasonable measures I have taken against this. They are not bound by the contract, and could easily and lawfully spread around copies of the work. They'd be on the hook for breaking in to my house, but that wouldn't help the author.
Also, the law does not consider it a bad thing to breach a contract. There are no punitive damages for breach, nor are damages permitted to penalize it rather than merely compensate for it. In fact, there's a whole doctrine called 'efficient breach' which says that parties should breach contracts if, even after accounting for the damages that would have to be paid to the other party, it makes economic sense to do so. So who would care if a copy were made as a consequence of breach?
So really all that it would take to reinstate "copyright" as such is a law prohibiting you from dealing in such copies
At which point you're basically just reviving copyright, which has a distribution right. You certainly haven't answered the question as to _why_ any of this should be done, which is what I'm interested in. Instead, you're trying to find alternative methods for doing the same thing. It's just like saying that if there were no copyright clause, Congress might try to regulate the field using the commerce clause. But that too would be irrelevant to the question of why should there be a copyright law, assuming a government which is legitimate only when it governs under the consent of its people and which has democratic components to it.
So you're saying that just as Disney could claim that its famous mark 'MICKEY MOUSE' was being diluted if a filmmaker made cartoons starring that character where the character had entered the public domain due to the copyright term expiring, and the trademark was generic for those particular goods, so too could Apple, Inc. claim that its famous mark 'APPLE' was being diluted if a farmer sold apples under the generic name used for those particular goods?
Dilution is a stupid idea to begin with, but even though it might permit a mark to stretch beyond what would constitute infringement, I think there are some limits to it. Where a mark is generic -- for whatever reason, including that works involving a trademarked character are in the public domain -- I think that dilution cannot reach. It's an interesting issue though, and I can't think of any cases on point at all.
Well, I agree with you about the expense of the lawsuit, but other than that, probably the opposite would occur.
Trademarks are inferior to copyrights where the two happen to meet. The former certainly cannot be used as a means to duplicate the effect of the latter. Which means that if the work in which the Mickey Mouse character first appeared entered the public domain, anyone could make use of the attributes of the characters as described in that work (e.g. black and white, different character design from the modern color Mickey) in making a new work. Attributes introduced in later works would remain unusable until those derivative works entered the public domain too.
This would wreck the heart of the trademark, since it would no longer serve to identify certain classes of goods as being from the Disney company, and being a source identifier is what trademarks have to do to remain alive.
You may be interested to read this and this for more information on how things would play out, assuming that the defendant had a limitless amount of money they'd be willing to spend on this.
Now, Mickey Mouse might still be trademarkable for other things, in much the same way that Peter Pan, a public domain character, can be used as a trademark for peanut butter and a bus line. But it wouldn't work for creative works like movies, and it might spread.
Trust me, there's a reason why Disney is so hell-bent on extending copyright terms.
If I make an album, or write a novel, it's my intellectual property.
Well, that's not really up to you, though. What is and is not property, and who owns or legitimately possesses that property, and what rights such a person or other people have with respect to the property can only be determined one of two ways. The first involves you personally defending it from others by means of force; this only works to a limited extent. The second is consensus opinion. That is, you have to convince everyone else to honor your claim and help you protect it.
Since it is difficult to write a novel and make money from it while, for example, using a shotgun to make sure no one makes a copy, you're going to have to rely on the second method.
So please feel free to convince me to respect your claim. But don't just make an assertion.
Also, FYI, the term 'intellectual property' can only possibly refer to things like copyrights or patents, but not the works or inventions to which they pertain. So your statement would need to be 'If I make an album, or write a novel, the copyrights pertaining to those are my intellectual property' in order to make any sense.
I should expect to have some reasonable right to be the only one selling this new creative work for a certain period of time.
Why? I would also like to sell that creative work, and compete with you. Convince me why I should not also sell the work (provided I can get a copy to begin with), and why I should have to pay you to get a copy of the work if I could have gotten a copy by some other means. I have an open mind about this, so I'm not charging you with some impossible task. But I warn you, just as I suspect you are acting from self-interest in wanting to monopolize the trade in copies of the work (which are commodities, each copy of a work being the same as another), I too am self-interested. Therefore, you are going to have to convince me that it is in my self-interest to tolerate your monopoly, and all that comes with it.
And since governments can only act legitimately when empowered by the will of their people, and since democracy of various sorts is quite popular, just saying 'it's a law' isn't a valid argument. A legitimate law would involve showing that it is in the self-interest of all of the people to respect your claim, and convincing them (perhaps by a proxy, such as an elected official) that it is a good idea.
So tell me, why should you have a copyright which other people respect? What's in it for the rest of us?
Well, they're capable of lasting forever, but they have to remain in use. Stop using the mark, or have certain things happen (e.g. naked licensing, genericide) and the mark is lost. This is why, for example, the IMHOTEP trademark for pyramids and pyramid construction services is no longer protected.
No, the mouse was invented at SRI in the early 60's, and the trackball was invented earlier still. The Xerox Star you mention wasn't even the first Xerox machine to use a mouse.
This exploitation right includes the right to publish it, see e.g. here and here.
That wasn't my impression reading the pages you linked to, nor would it really seem to make any sense.
Both pages refer to an exclusive right to publish, much like US copyright law refers to an exclusive right to distribute copies. But this doesn't mean what I think you think it means. An exclusive right isn't a right that only one person holds; rather it is a right to exclude (i.e. prohibit) other people from engaging in the particular activity. That means it also isn't a right to engage in it yourself.
If the right to publish a creative work in Europe stemmed from being the copyright holder, this would mean that public domain works -- whether the author was, say, Shakespeare, or even yourself if you had disclaimed the copyright, or the work was copyrightable but for some defect that made it ineligible -- could not lawfully be published at all. That's a nonsensical result.
Of course, I'm no expert in non-US copyright law, and the pages were not the actual laws, but lay explanations for them in a language not native to the countries at hand, so perhaps I have misunderstood what the law actually says. But Berne is available in English, and that's probably what those countries are relying heavily on (more fools them, IMO), and the Berne right to make copies is a negative right. Also, IIRC, Berne doesn't have a general distribution or publication right. Again, though, I may have missed it, as being in the US I have very little need to ever care about what's in Berne; we don't use it here.
Copyright is both a positive right (it gives the author the right to distribute and sell his product under his own conditions) and a negative right (you can forbid others to do certain stuff with your copyrighted work).
No, copyrights are purely negative rights. They permit the author to forbid others from doing certain things with their work under certain circumstances. But they provide the author no affirmative rights to do anything with his work. An author's right to create or publish a work is an exercise of his right of free speech and press, no different than if he were to use the work of another in a manner not prohibited by copyright. In the US, this right is guaranteed by the federal First Amendment and by similar provisions at the state level.
This is why, for example, an author could create obscene works, or child pornography, or libel, and have a perfectly valid copyright on them (there's no morals clause to what is eligible for copyright), but not be allowed to publish or perhaps even possess copies.
No, you're thinking of the federal government, and even then it's not quite what you think it is. Unless the government of the state of New York has a law whereby it disclaims copyrights in works it creates, it has federal copyrights in them. This having been said, it would probably be good for the Copyright Act to make all governmental bodies ineligible for copyright, on the grounds that it's no incentive to them. For example, the MTA's decisions regarding creating and publishing a schedule are going to be made without any concern for copyright. It isn't incentivized to do what it otherwise would not do because of copyright.
The one exception is judicial review, and that only applies to unconstitutional laws and is a power only the Supreme Court holds.
No, most courts have that power. State courts and inferior federal courts find laws unconstitutional all the time. (Additionally, judicial review can also apply to matters of administrative law without there being unconstitutionality)
SO when I am illegally distributing your copyrighted materials without your permission, your exclusive right to control the distribution is in tact. In other words, I didn't take you right to distribute the material for my own benefit, it remained exclusively yours and completely under your control when I distributed your copyrighted materials against your wished.
Yes. You would, however, have infringed against my (fully intact, still in my possession) rights, and could be held accountable for that. But I didn't lose the right to exclude anyone. In fact, my ability to enforce my rights against you by going to court, etc. is founded on the premise that I at all times had my rights and that you were acting contrary to my rights.
It is similar to if the federal government decided to ignore the free religion clauses of the First Amendment and force me to adopt a religion in which I did not believe. As a human being, I have a right to believe what I choose, and to not believe what I choose. They can't take that away from me. They can, at most, infringe on my right; Eppur si muove.
It also means that your exclusive right was taken from you while they were trespassing.
No, you still have the right to exclude them, even though they ignore you. All that happens is escalation, where you get the sheriff to enforce your right to exclude them. You never lose the right. If you lost the right, you'd never be able to get rid of them.
Look into a legal concept called Conversion or Criminal conversion. The cliff notes version is theft without actually taking it from you.
So have you looked at the Dowling case I quoted elsewhere in this discussion?
Unless Bob licenses to Carol in which case Alice lost her exclusive right.
Well, a license is essentially a promise not to sue for what would otherwise be an infringement. Bob can certainly promise to not sue Carol with regard to Alice's work, but that won't really mean much when Alice sues Carol. Certainly Alice won't lose her right. Your example is little different than if someone walked up to you and offered to sell you the Brooklyn Bridge.
we are talking about a theft of a specific right, not the entire work.
That really just cannot be done casually. It's vaguely imaginable that someone could defraud the copyright holder into transferring his rights away, but merely downloading a song from Napster would never suffice. If you're talking about the 'theft of a specific right,' then I submit to you that you don't know what you're talking about.
To infringe means to encroach upon in a way that violates law or the rights of another
Gee, that sounds a lot like when a copyright holder refuses to permit people to download a work to which he holds the copyright, and people download it anyway.
Copyright infringement does include theft and theft is what is happening when you take someone's exclusive right.
You keep forgetting that no one ever does seem to 'take someone's exclusive right.' It just doesn't happen. What happens is infringement. If a work is copyrighted, and without permission you 1) make another copy; 2) make a derivative work based on the work; 3) distribute copies of the work; 4) publicly perform the work (if the work meets certain criteria, sometimes depends on the means of performance), or; 5) publicly display the work (if the work meets certain criteria), and there is no applicable defense or exception in the law, then you have infringed on the copyright, but you have not stolen, taken, or converted any damn thing.
You could print up a billion and one DVDs of Star Wars and hand them out like candy, and it wouldn't even begin to be construeable as 'taking someone's exclusive right.' Why you're blathering on about the idea, when it is really just divorced from reality, I can't imagine.
Don't sweat it; it's fine. I shouldn't've read so much into that.
I would say though, that there is a distinction to be made between people who would not obey copyright law altogether, and people who would or would not depending on the circumstances. There can be opposition to a particular implementation, rather than the whole kit and caboodle.
Oh, I assure you, I'm a real lawyer. I didn't go to law school for years and suffer through the bar exam just to be a fake lawyer, no sir.
"stealing" is NOT A LEGAL TERM OF ART. Infringement is stealing. Larceny is stealing. Theft is stealing. Conversion is stealing. Misappropriation is stealing. Plagiarizing is stealing. Copying is stealing.
So you're saying that when I quoted you here, since that was an act of copying, I stole from you? I find this difficult to believe.
Let me make a suggestion to you instead: When discussing legal issues, we should all avoid ambiguous and inappropriate terminology, so that we can all clearly understand one another precisely. Therefore, if 'stealing' is not a term of art, and if it is unclear what it does mean, exactly (I for one don't agree with your definition, and I know others who don't either), and where the term is pretty clearly an appeal to emotion, an appeal to apply norms which may not be a good fit, and meant to vilify those who it is used against, then I think we should not use it at all.
The term the law uses nearly to the exclusion of all else is 'infringement.' So we ought to use that term too.
The law doesn't describe anything as stealing in an official capacity
Great, then let's all agree to stop using 'stealing' or 'stole' or the like when discussing copyright. I'm already in favor of using the precise legal terminology, but if someone else invokes it (as happened earlier), I'm not above briefly discussing why it's inapt.
The exclusive right in copyright is controlling the copying and distribution of a copyrighted work. If Alice is making unauthorized and illegal (the two are not automatically applicable) copies of the work, does Bob still have the exclusive control over copying and distribution? The fact that he still can is irrelevant because his exclusive control is gone when someone else takes it for their own benefit (whatever that may be).
Well, the exclusive right in copyright is the right to prohibit others from copying, etc. a copyrighted work. It isn't a right to do it oneself; that derives from the natural right of free speech, and is protected by the First Amendment, among other things. That's why if you write a libelous book, you can copyright it, but you cannot lawfully publish it. All the copyright is good for is keeping other people from publishing it, etc.
In any case, yes, Bob still has a right to prohibit Alice from doing what she's doing, as well as a right to prohibit the entire rest of the world from doing the things that if done would constitute infringement. Bob's rights include the ability to haul Alice into court, and to get the court to use physical force, if need be, to keep her from infringing. E.g. getting an injunction against her, and if she violates it, having her put in jail for violating it.
It seems many people are confusing the creative work with the copyright pertaining to that work. They are very different things.
Infringement is a past tense of stolen.
Far be it for me to comment one grammar issues on Slashdot, but....
I think you'll find that 'infringement' isn't even a verb, it is a noun. 'Infringe' is a verb, and 'infringed' is usually how you'd describe a past act of infringement. And it's nothing whatsoever to do with 'steal.' I'd have to check my handy-dandy pocket-sized unabridged OED to be sure, but I bet they have no history in common whatsoever.
It follows the lines of conversion theft and is in the same legal construct as theft. In conversion, you are not necessarily deprived of your usage either.
Copyright infringement is sui generis. It is 100% unrelated to the tort of conversion. That's kind of the reason we have copyright law; if it were capable of being handled under the aegis of a tort that has been around for many centuries longer than copyright, we would not have had to bother with copyright in the first place. Even common law copyright is unrelated to conversion, not that it matters much, statutory copyright having basically killed it.
It is the same from a legal perspective.
What is this, opposite day?
Let's look at Dowling v. United States, 473 U.S. 207 (1985), an interesting Supreme Court case that might prove instructive. I've gotten rid of the internal citations for clarity.
[T]he Government's theory here would make theft, conversion, or fraud equivalent to wrongful appropriation of statutorily protected rights in copyright. The copyright owner, however, holds no ordinary chattel. A copyright, like other intellectual property, comprises a series of carefully defined and carefully delimited interests to which the law affords correspondingly exact protections.... Thus, the property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple "goods, wares, [or] merchandise," for the copyright holder's dominion is subjected to precisely defined limits.
It follows that interference with copyright does not easily equate with theft, conversion, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright: "`Anyone who violates any of the exclusive rights of the copyright owner,' that is, anyone who trespasses into his exclusive domain by using or authorizing the use of the copyrighted work in one of the five ways set forth in the statute, `is an infringer of the copyright.'...
Slashdot Mirror
You can always get a regular book rebound in leather. It's nice, but pricey.
Google has made absolutely ZERO attempt to ascertain the identity or whereabouts of the rightsholders of these "orphan" works. I'm one of them. I have been notified by Google about each of my in-print books (five in all), but NONE of my parents' books, even though they were published by HarperCollins, who used to send me royalty checks for those books and would no doubt be happy to tell Google how to reach me.
Why don't you tell Google how and why to reach you? The whole 'orphan works' problem here would be taken care of quite easily if the US reverted back to our traditional practice of making copyright opt-in for published works. If an author cares about controlling the work, perhaps because he wants those royalty checks, he can surely spare a few minutes periodically to apply for copyrights, renew the copyrights, and to keep his contact information up to date and on file with the Copyright Office. If he sells or exclusively licenses the rights, then part of that transaction would again involve updating the Copyright Office. So long as the author cares, he can keep his copyright for only a token investment of time and money -- much like we do for patents or trademarks. If the author doesn't care or stops caring, he'll likely fail to apply for a copyright or fail to renew it, allowing the work to enter the public domain sooner. And after all, if the author doesn't care about his copyrights, who are we to disagree with him?
This worked fine for about 200 years, and it was a mistake ever getting away from it. We need to get back to this right away, making all the necessary changes in the law (e.g. withdrawing from Berne) in order to do so.
The scanning activity is labor
Well, in the US at least, mere labor is insufficient for copyright to arise. Rather, a copyrightable work (or the copyrightable portions thereof) must be original and creative. Here, Google is engaged in slavish copying; they are copying extant works, so their scans are not original, and they are copying as exactly as they can, so they are not creative.
and text as a product of OCR
Again, though, they are copying as exactly as they can manage. This means the machine readable text will also not be independently copyrightable.
However, the uncopyrightable copies -- that is, the tangible media on which the scans and text are stored -- are Google's property, and they are not obligated to give anyone access to them unconditionally, much less at all. So while Google lacks a copyright on their copies of public domain works, they can condition access to those copies on users promising not to make their own copies from the scans or text, and to not engage in distribution of such copies. If a user did it anyway, it wouldn't be copyright infringement, but breach of contract.
Of course, Google could allow unrestricted access to those works just as easily. Given their 'don't be evil' ethos, that would be the appropriate thing for them to do.
It needn't be one rich guy. It could be a group of several (or hundreds, or thousands, or more) people of more moderate means. If an author had a thousand fans, each fan could chip in $5 to an escrow account, with the money only being released when the author turned in a short story that fit the objective requirements (e.g. word count, theme, style) set by the group of patrons before some deadline. Of course, it will take work for an author to get enough fans starting out that eventually some of them would pay, but that's a problem in any system where artists want to get paid. Van Gogh had the benefit of strong European copyright laws, but only ever sold one painting in his life. There's just no easy way to get popular and sustain it.
So in 17th Century Europe you had playwrites coming up with pretty much rehashes of the same theme over and over again because that is what the patrons of the arts liked and would pay for.
You've described the summer blockbuster movie genre -- i.e. 'lots of crap blows up real good' -- perfectly.
Copyright rewards only popular works, even if they are crappy rehashes of the same old thing. It doesn't have anything to do with what's actually good. Nor should it, since the government is the last entity that we want making such decisions for anything beyond the odd public building, war monument, or building code.
The study group's mission statement makes the same point, saying that it wants to give consumers true ownership of content while still "preserving business models based on the sale of private goods where the number of items in circulation equals the number sold and the number of users of each item is naturally, reasonably, and unavoidably limited."
Why would we want to preserve these business models? Given that it is everyone else who is being asked to shoulder the burden of propping them up, what good are they to us that they deserve it?
Copyright may be desirable under the right circumstances (i.e. a copyright law that produced social benefits greater than those produced by any alternative, or no copyright law at all), but at least it can be easily changed according to the needs of society, assuming the government is legitimate and not corrupt. DRM -- which is what this quite obviously is, just with a different name -- is too subject to the whims of creators and publishers, rather than the public, and too fixed once in place. Attempts to push DRM need to be strangled as soon as possible, although we must respect that free speech includes the right to use DRM.
So a better alternative would be a copyright law promulgated by a legitimate and non-corrupt government, which put the needs of the public first (i.e. the need for more works to be created and published so that the public can get access to them, and the need for such works to be as useful to the public as possible, which means uncopyrighted, or at worst, minimally copyrighted, in both scope of rights, and duration of term); where the grant of copyright on a work would be conditional on neither the copyright holder, nor anyone authorized by the copyright holder, applying any sort of DRM to copies, performances, or displays of the work made available to the public; where if DRM was so applied, the copyright would be revoked; and where the government would cooperate with the public to crack DRM systems and freely republish works which had been protected by DRM, and were therefore, in the public domain.
It'll take some work to accomplish this. Various treaties (WIPO, Berne, the UCC, etc.) set up minimum standards that interfere with meaningful reform efforts (e.g. legalizing the breaking of DRM, terms shorter than life+50, resurrecting formalities so that an author must opt-in to copyright for a particular work or else forgo it). We'll have to withdraw from these treaties, but to be honest, they're not really that important anyway; it is in the interests of each country to unilaterally offer national treatment (i.e. a country should not discriminate on the basis of nationality with regard to any aspect of copyright law), without minimum standards that compel two differently situated countries to enact the same laws as though they were perfectly alike.
There's a reason why the amendment to the US Constitution guaranteeing freedom of speech is first; it's the most important.
No.
Congress passed a Bill of Rights comprised of twelve articles as proposed amendments to the Constitution, which were then sent out to the states for ratification. Only numbers 3-12 were ratified at the time, and they became Amendments 1-10. The second article languished for about 200 years but eventually got enough states ratifying it by the 1990's to become the 27th Amendment. The first one has yet to get enough votes, and likely never will, although it actually got very close at the time, which would have made it the First Amendment.
And in some of the drafts, free speech comes in far from the beginning.
So don't think that the ordering really means anything; it doesn't.
I'll bet you're a big fan of 'The Invasion of Time.'
In ST:TOS, the Enterprise would often be "three weeks out" from the starbase of the week. It had a crew of about 1,000.
No, it was usually somewhat more than 400, IIRC.
Since the creator of the work has the first copy and never sells copies except under contract, every copy is either authorized by the creator or have, at some point, been a breach of that contract.
No. Only the parties to a contract are bound by it. Suppose that one day pirates break into my house and make a copy of my copy of the work despite whatever reasonable measures I have taken against this. They are not bound by the contract, and could easily and lawfully spread around copies of the work. They'd be on the hook for breaking in to my house, but that wouldn't help the author.
Also, the law does not consider it a bad thing to breach a contract. There are no punitive damages for breach, nor are damages permitted to penalize it rather than merely compensate for it. In fact, there's a whole doctrine called 'efficient breach' which says that parties should breach contracts if, even after accounting for the damages that would have to be paid to the other party, it makes economic sense to do so. So who would care if a copy were made as a consequence of breach?
So really all that it would take to reinstate "copyright" as such is a law prohibiting you from dealing in such copies
At which point you're basically just reviving copyright, which has a distribution right. You certainly haven't answered the question as to _why_ any of this should be done, which is what I'm interested in. Instead, you're trying to find alternative methods for doing the same thing. It's just like saying that if there were no copyright clause, Congress might try to regulate the field using the commerce clause. But that too would be irrelevant to the question of why should there be a copyright law, assuming a government which is legitimate only when it governs under the consent of its people and which has democratic components to it.
So you're saying that just as Disney could claim that its famous mark 'MICKEY MOUSE' was being diluted if a filmmaker made cartoons starring that character where the character had entered the public domain due to the copyright term expiring, and the trademark was generic for those particular goods, so too could Apple, Inc. claim that its famous mark 'APPLE' was being diluted if a farmer sold apples under the generic name used for those particular goods?
Dilution is a stupid idea to begin with, but even though it might permit a mark to stretch beyond what would constitute infringement, I think there are some limits to it. Where a mark is generic -- for whatever reason, including that works involving a trademarked character are in the public domain -- I think that dilution cannot reach. It's an interesting issue though, and I can't think of any cases on point at all.
Well, I agree with you about the expense of the lawsuit, but other than that, probably the opposite would occur.
Trademarks are inferior to copyrights where the two happen to meet. The former certainly cannot be used as a means to duplicate the effect of the latter. Which means that if the work in which the Mickey Mouse character first appeared entered the public domain, anyone could make use of the attributes of the characters as described in that work (e.g. black and white, different character design from the modern color Mickey) in making a new work. Attributes introduced in later works would remain unusable until those derivative works entered the public domain too.
This would wreck the heart of the trademark, since it would no longer serve to identify certain classes of goods as being from the Disney company, and being a source identifier is what trademarks have to do to remain alive.
You may be interested to read this and this for more information on how things would play out, assuming that the defendant had a limitless amount of money they'd be willing to spend on this.
Now, Mickey Mouse might still be trademarkable for other things, in much the same way that Peter Pan, a public domain character, can be used as a trademark for peanut butter and a bus line. But it wouldn't work for creative works like movies, and it might spread.
Trust me, there's a reason why Disney is so hell-bent on extending copyright terms.
If I make an album, or write a novel, it's my intellectual property.
Well, that's not really up to you, though. What is and is not property, and who owns or legitimately possesses that property, and what rights such a person or other people have with respect to the property can only be determined one of two ways. The first involves you personally defending it from others by means of force; this only works to a limited extent. The second is consensus opinion. That is, you have to convince everyone else to honor your claim and help you protect it.
Since it is difficult to write a novel and make money from it while, for example, using a shotgun to make sure no one makes a copy, you're going to have to rely on the second method.
So please feel free to convince me to respect your claim. But don't just make an assertion.
Also, FYI, the term 'intellectual property' can only possibly refer to things like copyrights or patents, but not the works or inventions to which they pertain. So your statement would need to be 'If I make an album, or write a novel, the copyrights pertaining to those are my intellectual property' in order to make any sense.
I should expect to have some reasonable right to be the only one selling this new creative work for a certain period of time.
Why? I would also like to sell that creative work, and compete with you. Convince me why I should not also sell the work (provided I can get a copy to begin with), and why I should have to pay you to get a copy of the work if I could have gotten a copy by some other means. I have an open mind about this, so I'm not charging you with some impossible task. But I warn you, just as I suspect you are acting from self-interest in wanting to monopolize the trade in copies of the work (which are commodities, each copy of a work being the same as another), I too am self-interested. Therefore, you are going to have to convince me that it is in my self-interest to tolerate your monopoly, and all that comes with it.
And since governments can only act legitimately when empowered by the will of their people, and since democracy of various sorts is quite popular, just saying 'it's a law' isn't a valid argument. A legitimate law would involve showing that it is in the self-interest of all of the people to respect your claim, and convincing them (perhaps by a proxy, such as an elected official) that it is a good idea.
So tell me, why should you have a copyright which other people respect? What's in it for the rest of us?
Well, they're capable of lasting forever, but they have to remain in use. Stop using the mark, or have certain things happen (e.g. naked licensing, genericide) and the mark is lost. This is why, for example, the IMHOTEP trademark for pyramids and pyramid construction services is no longer protected.
No, the mouse was invented at SRI in the early 60's, and the trackball was invented earlier still. The Xerox Star you mention wasn't even the first Xerox machine to use a mouse.
You could also advertise Mustang (car) rides, assuming that the cars were Ford Mustangs, since that would be a nominative use.
Or you could have rides at the other, well-known Mustang Ranch, and that might be okay too.
This exploitation right includes the right to publish it, see e.g. here and here.
That wasn't my impression reading the pages you linked to, nor would it really seem to make any sense.
Both pages refer to an exclusive right to publish, much like US copyright law refers to an exclusive right to distribute copies. But this doesn't mean what I think you think it means. An exclusive right isn't a right that only one person holds; rather it is a right to exclude (i.e. prohibit) other people from engaging in the particular activity. That means it also isn't a right to engage in it yourself.
If the right to publish a creative work in Europe stemmed from being the copyright holder, this would mean that public domain works -- whether the author was, say, Shakespeare, or even yourself if you had disclaimed the copyright, or the work was copyrightable but for some defect that made it ineligible -- could not lawfully be published at all. That's a nonsensical result.
Of course, I'm no expert in non-US copyright law, and the pages were not the actual laws, but lay explanations for them in a language not native to the countries at hand, so perhaps I have misunderstood what the law actually says. But Berne is available in English, and that's probably what those countries are relying heavily on (more fools them, IMO), and the Berne right to make copies is a negative right. Also, IIRC, Berne doesn't have a general distribution or publication right. Again, though, I may have missed it, as being in the US I have very little need to ever care about what's in Berne; we don't use it here.
Copyright is both a positive right (it gives the author the right to distribute and sell his product under his own conditions) and a negative right (you can forbid others to do certain stuff with your copyrighted work).
No, copyrights are purely negative rights. They permit the author to forbid others from doing certain things with their work under certain circumstances. But they provide the author no affirmative rights to do anything with his work. An author's right to create or publish a work is an exercise of his right of free speech and press, no different than if he were to use the work of another in a manner not prohibited by copyright. In the US, this right is guaranteed by the federal First Amendment and by similar provisions at the state level.
This is why, for example, an author could create obscene works, or child pornography, or libel, and have a perfectly valid copyright on them (there's no morals clause to what is eligible for copyright), but not be allowed to publish or perhaps even possess copies.
No, you're thinking of the federal government, and even then it's not quite what you think it is. Unless the government of the state of New York has a law whereby it disclaims copyrights in works it creates, it has federal copyrights in them. This having been said, it would probably be good for the Copyright Act to make all governmental bodies ineligible for copyright, on the grounds that it's no incentive to them. For example, the MTA's decisions regarding creating and publishing a schedule are going to be made without any concern for copyright. It isn't incentivized to do what it otherwise would not do because of copyright.
The one exception is judicial review, and that only applies to unconstitutional laws and is a power only the Supreme Court holds.
No, most courts have that power. State courts and inferior federal courts find laws unconstitutional all the time. (Additionally, judicial review can also apply to matters of administrative law without there being unconstitutionality)
Oh, sure. How could you have Judgment Day without a bunch of lawyers present?
SO when I am illegally distributing your copyrighted materials without your permission, your exclusive right to control the distribution is in tact. In other words, I didn't take you right to distribute the material for my own benefit, it remained exclusively yours and completely under your control when I distributed your copyrighted materials against your wished.
Yes. You would, however, have infringed against my (fully intact, still in my possession) rights, and could be held accountable for that. But I didn't lose the right to exclude anyone. In fact, my ability to enforce my rights against you by going to court, etc. is founded on the premise that I at all times had my rights and that you were acting contrary to my rights.
It is similar to if the federal government decided to ignore the free religion clauses of the First Amendment and force me to adopt a religion in which I did not believe. As a human being, I have a right to believe what I choose, and to not believe what I choose. They can't take that away from me. They can, at most, infringe on my right; Eppur si muove.
It also means that your exclusive right was taken from you while they were trespassing.
No, you still have the right to exclude them, even though they ignore you. All that happens is escalation, where you get the sheriff to enforce your right to exclude them. You never lose the right. If you lost the right, you'd never be able to get rid of them.
Look into a legal concept called Conversion or Criminal conversion. The cliff notes version is theft without actually taking it from you.
So have you looked at the Dowling case I quoted elsewhere in this discussion?
Unless Bob licenses to Carol in which case Alice lost her exclusive right.
Well, a license is essentially a promise not to sue for what would otherwise be an infringement. Bob can certainly promise to not sue Carol with regard to Alice's work, but that won't really mean much when Alice sues Carol. Certainly Alice won't lose her right. Your example is little different than if someone walked up to you and offered to sell you the Brooklyn Bridge.
we are talking about a theft of a specific right, not the entire work.
That really just cannot be done casually. It's vaguely imaginable that someone could defraud the copyright holder into transferring his rights away, but merely downloading a song from Napster would never suffice. If you're talking about the 'theft of a specific right,' then I submit to you that you don't know what you're talking about.
To infringe means to encroach upon in a way that violates law or the rights of another
Gee, that sounds a lot like when a copyright holder refuses to permit people to download a work to which he holds the copyright, and people download it anyway.
Copyright infringement does include theft and theft is what is happening when you take someone's exclusive right.
You keep forgetting that no one ever does seem to 'take someone's exclusive right.' It just doesn't happen. What happens is infringement. If a work is copyrighted, and without permission you 1) make another copy; 2) make a derivative work based on the work; 3) distribute copies of the work; 4) publicly perform the work (if the work meets certain criteria, sometimes depends on the means of performance), or; 5) publicly display the work (if the work meets certain criteria), and there is no applicable defense or exception in the law, then you have infringed on the copyright, but you have not stolen, taken, or converted any damn thing.
You could print up a billion and one DVDs of Star Wars and hand them out like candy, and it wouldn't even begin to be construeable as 'taking someone's exclusive right.' Why you're blathering on about the idea, when it is really just divorced from reality, I can't imagine.
Don't sweat it; it's fine. I shouldn't've read so much into that.
I would say though, that there is a distinction to be made between people who would not obey copyright law altogether, and people who would or would not depending on the circumstances. There can be opposition to a particular implementation, rather than the whole kit and caboodle.
When will you fake lawyers
Oh, I assure you, I'm a real lawyer. I didn't go to law school for years and suffer through the bar exam just to be a fake lawyer, no sir.
"stealing" is NOT A LEGAL TERM OF ART. Infringement is stealing. Larceny is stealing. Theft is stealing. Conversion is stealing. Misappropriation is stealing. Plagiarizing is stealing. Copying is stealing.
So you're saying that when I quoted you here, since that was an act of copying, I stole from you? I find this difficult to believe.
Let me make a suggestion to you instead: When discussing legal issues, we should all avoid ambiguous and inappropriate terminology, so that we can all clearly understand one another precisely. Therefore, if 'stealing' is not a term of art, and if it is unclear what it does mean, exactly (I for one don't agree with your definition, and I know others who don't either), and where the term is pretty clearly an appeal to emotion, an appeal to apply norms which may not be a good fit, and meant to vilify those who it is used against, then I think we should not use it at all.
The term the law uses nearly to the exclusion of all else is 'infringement.' So we ought to use that term too.
The law doesn't describe anything as stealing in an official capacity
Great, then let's all agree to stop using 'stealing' or 'stole' or the like when discussing copyright. I'm already in favor of using the precise legal terminology, but if someone else invokes it (as happened earlier), I'm not above briefly discussing why it's inapt.
The exclusive right in copyright is controlling the copying and distribution of a copyrighted work. If Alice is making unauthorized and illegal (the two are not automatically applicable) copies of the work, does Bob still have the exclusive control over copying and distribution? The fact that he still can is irrelevant because his exclusive control is gone when someone else takes it for their own benefit (whatever that may be).
Well, the exclusive right in copyright is the right to prohibit others from copying, etc. a copyrighted work. It isn't a right to do it oneself; that derives from the natural right of free speech, and is protected by the First Amendment, among other things. That's why if you write a libelous book, you can copyright it, but you cannot lawfully publish it. All the copyright is good for is keeping other people from publishing it, etc.
In any case, yes, Bob still has a right to prohibit Alice from doing what she's doing, as well as a right to prohibit the entire rest of the world from doing the things that if done would constitute infringement. Bob's rights include the ability to haul Alice into court, and to get the court to use physical force, if need be, to keep her from infringing. E.g. getting an injunction against her, and if she violates it, having her put in jail for violating it.
It seems many people are confusing the creative work with the copyright pertaining to that work. They are very different things.
Infringement is a past tense of stolen.
Far be it for me to comment one grammar issues on Slashdot, but....
I think you'll find that 'infringement' isn't even a verb, it is a noun. 'Infringe' is a verb, and 'infringed' is usually how you'd describe a past act of infringement. And it's nothing whatsoever to do with 'steal.' I'd have to check my handy-dandy pocket-sized unabridged OED to be sure, but I bet they have no history in common whatsoever.
It follows the lines of conversion theft and is in the same legal construct as theft. In conversion, you are not necessarily deprived of your usage either.
Copyright infringement is sui generis. It is 100% unrelated to the tort of conversion. That's kind of the reason we have copyright law; if it were capable of being handled under the aegis of a tort that has been around for many centuries longer than copyright, we would not have had to bother with copyright in the first place. Even common law copyright is unrelated to conversion, not that it matters much, statutory copyright having basically killed it.
It is the same from a legal perspective.
What is this, opposite day?
Let's look at Dowling v. United States, 473 U.S. 207 (1985), an interesting Supreme Court case that might prove instructive. I've gotten rid of the internal citations for clarity.
[T]he Government's theory here would make theft, conversion, or fraud equivalent to wrongful appropriation of statutorily protected rights in copyright. The copyright owner, however, holds no ordinary chattel. A copyright, like other intellectual property, comprises a series of carefully defined and carefully delimited interests to which the law affords correspondingly exact protections. ... Thus, the property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple "goods, wares, [or] merchandise," for the copyright holder's dominion is subjected to precisely defined limits.
It follows that interference with copyright does not easily equate with theft, conversion, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright: "`Anyone who violates any of the exclusive rights of the copyright owner,' that is, anyone who trespasses into his exclusive domain by using or authorizing the use of the copyrighted work in one of the five ways set forth in the statute, `is an infringer of the copyright.' ...
The infringer invades a statutorily def