I would argue 4th amendment on the grounds that by taking possession of the book (seizure) and reading it (search) without the intention of giving it a fair and just opportunity of receiving a copyright violates probable cause.
What?
Remember, we are talking about if federal copyrights were granted or not granted in some manner. While I feel that most decisions as to whether, when, and to whom copyrights shall be granted will be judged on a rational basis standard, you wanted to discuss grants that did not even meet that very low threshold.
Nevertheless, we are still talking about granting (or not granting) copyrights. If the law fails to give Alice a copyright for some otherwise unconstitutional reason, it is not a violation of her Fourth Amendment rights. That amendment protects Alice from having the government making unwarranted intrusions upon her privacy, and searching through her effects. In what possible way does Alice's lack of a copyright result in the police literally breaking down her door, scouring her home for her writings, and taking them away? It is a ludicrous idea. A lack of copyright does not mean a lack of privacy. Indeed, a copyright really is only of value for works that are in the public sphere. With a copyright, if Alice publishes her work, she can prohibit other people, like Bob, from making copies, for example. Without a copyright, if she publishes her work, Bob can copy it freely. But a lack of a copyright doesn't mean Alice is obligated to publish, or even to create. She can keep her works private, if she likes. Without the opportunity to copy, the fact that Bob can legally do so amounts to nothing. Plus, of course, the Fourth Amendment only prohibits state actors (e.g. police) from doing certain things. It doesn't prohibit private individuals from anything at all.
So in short, the idea of trying to overturn copyright laws that did not even have a rational basis on the argument that they violated the Fourth Amendment rights of authors is simply absurd. Frankly, if you tried this in court, you would at the very least face a stern reprimand, and perhaps even a threat of sanctions.
I know the difference between the 5th and 14th amendments. But the 14th amendment provides a higher standard of protection. I would argue that the Federal government should not be held to a lower standard than the states.
They're of basically equal value, post Bolling. The difference is that the Fourteenth Amendment applies to the states, and the Fifth Amendment applies to the federal government. Since we're talking about federal copyright law, the Fourteenth Amendment is facially inapplicable. Again, out would come the reprimands, etc. You do your position no good by raising obviously irrelevant lines of argument.
you argue everything you can conceive of.
Sure, unless it's just plain dumb. I've never heard of a court yet that liked to have its time wasted with frivolous arguments, which is why people generally try to avoid making them. I guess things must be pretty different wherever you're barred.
I could see it being considered a seizure. Granted, it's a little bit of a stretch, but I can see making the argument.
It's an absurd stretch, I think. If Congress doesn't grant a particular author a copyright, this doesn't equate to seizing their work, which in context, means seizing their work as evidence for the purposes of a criminal investigation against the author.
For starters, a seizure implies an affirmative act; failure to grant a copyright is not an affirmative act, or even any kind of act at all. It is as though you are saying that if I have the choice to either give you $5 as a gift, or not, and I haven't even made so much as a promise to you (if it mattered), and I decide not to give you the money, that this means I have robbed you. As I said, absurd.
Oh, and you might also want to look into the differences between the Fifth and Fourteenth Amendment. Since we're talking about federal copyright law, it would only be the Fifth that would be relevant.
Well, I dunno. I think that you'll find that everyday copyright legislation would be judged on a rational basis standard. Sure, if copyrights were whites-only or something, that would be overturned, and rightly so. But granting copyrights only for books and maps, and not for music, or visual arts, would likely stand, even though it treats different classes of works, and thus authors, differently.
Off the top of my head, the 4th, 5th, and 14th amendments and the General Welfare clause
Not granting copyrights is not at all the same as forcing authors to create and publish works; it's just a failure to encourage authors to do so, and to protect authors that have voluntarily done so. And bearing that in mind, I would love to hear why even outrageously discriminatory copyright grants would violate the Fourth Amendment.
As others have noted, the US has had federal copyrights since 1790, and state copyrights slightly before that. But for quite a while we only granted them to US citizens. When foreign authors would complain that they wanted US copyrights, the standard reply was to invite them to emigrate to the US.
Personally, while I loathe the idea of copyright treaties, since they hinder important reforms, such as shorter terms, lesser protection, registration formalities, etc., I do think that the US ought to unilaterally grant national treatment (i.e. treating foreign authors just the same as domestic ones). After all, the point of copyright is to promote the progress of science, and the nationality of the author really isn't important in that light.
There are other reasons, and even other ways to make money without needing a monopoly. Other factors drive progress, as well, often more than a monopoly could or does. Human civilization got all the way from clubs and cave paintings to guns and the Old Masters before either patents or copyrights were invented.
I don't think we should totally abolish patents or copyrights, but neither should we think of them as absolutely essential. We should have them to the degree that they're useful for society (ideally to the degree that they are maximally useful), no more, no less.
A man has the right to the product of his mind, and to do with it what he sees fit.
I agree. The problem is that when you share what's on your mind with everyone else, now it is in our minds too, and we can use it just as well as you could. You're arguing against intellectual freedom and censorship. To argue in favor of copyright, you have to say that Alice has the right to censor Bob, merely because Bob is repeating what Alice said first. There may be a good reason to do this, but the right to censor others for no other reason than the provenance of what they say could only be artificial in origin. It's granted by the people who are being censored, in fact, which means you'll essentially need their consent, which is unlikely to be granted unless they're benefiting from it somehow.
No, it says that Congress has the power to secure it, if Congress so wishes. There is no Constitutional obligation, though.
As for your essay, while I'd agree with you on some issues, and disagree with you on many others, I don't really see the point.
There are really only three options for an author who would see his works published. First, make a deal with a publisher. As there are a lot of authors (who tend to be bad at making deals) and rather fewer publishers (who tend to be quite good at making deals), the author is probably going to get a bad deal. Second, self-publish, but this is often inefficient, as authors are unlikely to get the best deals, or have working relationships with retailers, big-name reviewers, etc. The Internet is making this a little easier, but not a whole lot easier, unless your sights are set low (e.g. being the top dog of some sort of fanfic community). Third, for the law to treat authors paternalistically, not allowing them to make deals which outsiders viewed as bad (by letting the authors terminate transfers, or be unable to sell the entirety of their rights in a work). This is offensive, and it certainly isn't in keeping with the normal level of government involvement in business dealings. If the author were selling land to a developer, we'd certainly let him make a bad deal.
This is what we have under a normal copyright system, and I don't see how your somewhat Lockean approach really would help authors any.
It does not suggest a functional method of maintaining the appropriate balance
Sure it does, especially given that I propose that his competition would merely be people acting non-commercially; no one else could perform the film in a theater for admission, nor sell copies on video, or provide downloads in conjunction with ads, or in exchange for other works. I daresay he'd wind up better off than he ultimately did.
A copy is precisely what we're talking about--if the work doesn't exist in physical form, the whole discussion is moot.
No. First, because despite your confusion on the issue, I've always maintained that the public's rights deal with intangible works. Not copies, which are perfectly ordinary personal property and can be treated as such. Second, the public has rights even as to unfixed works, if published (in the previously discussed broad sense of the term) to the public, such as improvised music or performances. The long term preservation of works is aided a lot by fixation, so the copyright system encourages authors to do so. If they don't, it is perfectly in keeping with the goals of copyright to open the field to anyone to fix the work instead. Of course, cf. with the copyright maximalists who, in order to "protect artists" who fail to fix their own works, prohibit others to fix the works, ensuring that the works are lost to the ages. Don't even try to tell me that that promotes the progress of science.
When literacy was low and printing presses were hard to come by, there was built-in protection.
Except, of course, that anyone who did happen to get a copy of a work could use it freely. I'd be shocked if this didn't routinely happen. Besides, the very idea of copyright didn't even exist in the short span of time when presses were rare.
A certain group of designated individuals, who gained legitimate access to the scrolls, had official permission to copy them for the library.
The legitimate access was gained because the local government simply ordered it so; the wishes of the authors or even the owners of the copies were utterly irrelevant. And that government was the source of the official permission. It is astonishing that you would cite this to support the idea that authors are the masters of their works. For your next trick, I'd like to request proof that black is white, or that war is peace.
People do not have the individual authority to make judgments on rights guaranteed by laws.
Such as the legally guaranteed right of a southern lunch counter to deny sit-down service to black patrons? The right of a distant Parliament to govern its colonies as it saw fit, without their involvement? Copyright is not nearly so vital an issue, but we've got to start somewhere.
The entire question of what operates outside the rule of law is moot. The rule of law is in operation.
Laws don't spring out of nowhere, though. Their origin and source of authority should always be borne in mind. No law just automatically has the power to rule, as it were. It must be earned. And a displeasing law is quite rightly subject to amendment or repeal. Copyright law, while an excellent idea, has become deeply offensive to the public it is meant to serve first and foremost. I'm all for the rule of law, so long as the law is deserving. I merely suggest that the time has long since come to replace the current copyright law with one that deserves respect and obedience. Again, the lesson of Prohibition should be heeded.
The weasel word there could not be more plain or more telling.
We also have the world's second through thirteenth, copyright laws (IIRC, Rhode Island didn't have one), but there's a good reason they're usually not brought up. The states really made a shamble of things during the Articles of Confederacy period, which is why we wound up quickly scrapping our first national government and creating a replacement, which is still the one that we have to this day. Most of the powers that Congress is vest
'Demonstrably' presumes a demonstration, which you have not achieved.
The Romero example; it's a public domain work, many publishers sell copies, and the author sells copies as well.
Of course, I advocate the legalization of otherwise infringing non-commercial behavior engaged in by natural persons. So while there would be some effect on the market for authorized copies of the work, whatever market remained would still largely be monopolized by the copyright holder. So really, the example goes a little further than it strictly needs to.
It's not the use of privacy rights, but simply the use of property rights.
There is no property. A copy is property, but that's not what we're talking about. A copyright is arguably property, but that too is not what we're talking about. A work isn't property. If it were, we wouldn't need copyright; ordinary personal property law would do nicely. The principle reason that a work can't be property is its inherent non-rivalrous nature. An author can share a work, but he can't actually dispose of it, nor can he recover it. You'll already be aware of this, as Jefferson was discussing it earlier. Frankly, creative works, along with inventions, and ideas generally, were practically designed by God to not be property. They can't help but spread, and unless they die due to inattention, they're pretty much impossible to contain or destroy.
Prior to copyright and its functional predecessors, works were not published as we understand the term.
There are no functional predecessors to copyright, save for systems of censorship and monopoly. There's a reason no one points to the stationers' copyright and says 'That was a good idea.' Copyright began with the Statute of Anne. Anything prior might have a similar name, but that's about it.
Further, while the definition of publication for copyright law purposes focuses on publication in copies, this is really little more than an accident in the evolution of the law. It's more accurate -- and on the list of issues to be addressed in the coming reform -- to think of publication as exposing the work to the public by any means. Public performance or display would do quite nicely. And given that widespread literacy is a fairly recent phenomenon, unfixed publication was pretty much the only way to exploit many creative works. Also, you are forgetting about newspapers.
nothing gave the public an intrinsic right to achieve access to them
And I've said all along that nothing gives the public an intrinsic right to access privately kept copies, period. The intrinsic right is to copy and distribute the works, should access to the copies be achieved through some means. Once someone starts doing this, though, access to the work by the public at large is generally going to occur.
A truly bizarre statement considering that the works that survived are ones of common cultural heritage that had all become sufficiently public by the acts of their creators so as to be preserved.
Well, no. Consider Alexandria, for example. The law of the city was that any scroll that arrived (and which was of interest) would be copied, to enlarge the collection of their famous library. We don't really know the provenance of all the surviving works of the classical world, but what with them being copied by one group and then another and so on, it's not really difficult to imagine that there were times that works were preserved and disseminated against the wishes of their creators.
There are even modern examples along these lines. Kafka wanted all of his works destroyed upon his death, but his executor wisely ignored that wish. Quite famously, Nabokov wanted his last MS destroyed, and after dithering over it for the last few decades, his family has finally decided to publish. Presumably everyone is happy about this other than Nabokov, who no one actually cares about.
And of course, there's Agrippa, which people have worked to preserve, lest it be lost, which is actually what is suppo
Sure, but even as clarified, it's still demonstrably incorrect.
A work, when created, is solely, exclusively, permanently private, owned as to all applicable legal rights by its creator. Any use of that work is a legal injury.
No, I disagree. A work, having been created, may be kept private. But they often aren't, and once revealed to the public, it is no longer shielded by whatever privacy rights that were employed to do so. And while a particular party who infringes on those privacy rights might face legal action for his trespass, if the work gets revealed to the whole world, it's simply not possible to use privacy rights to hold the whole world to account. After all, they're not the ones who infringed, they aren't aware of the dastardly way in which the work reached them, and except in the most limited circumstances, no remedy can actually serve to make the author whole. Post-publication is the point at which copyright becomes useful, even if the publication was wrongful. Your attempts to unring the bell will not be fruitful; it's better to deal with it and move on.
The third party does not have a right to exceed the terms of his access; the public does not have a right through him to make demands; any breach is subject to damages.
There are no demands by the public here, but if a trade secret is sufficiently breached -- say, if everyone in the world was sent a copy of the secret recipe for Coke -- it just cannot be repaired. You can't have a trade secret that isn't secret.
The public has rights in works upon creation, but they're essentially moot, for a lack of access, which is one thing that the public doesn't have a right to compel. This might seem odd, but given that the author can't grant affirmative rights to the work (he, after all, relies on his free speech right to actually do things; copyright is merely the right to deny others the right to exercise their inherent rights), nor can anyone else, it's the only way that we can describe reality. Fatal flaws in your hypothesis have already been pointed out; I won't bother with getting into them yet again.
that is only one sense of the word natural
Well, for the idea of natural rights, I've seen no one better than Hobbes. Where you're coming from, who knows.
Absent a copyright, the works remain fully and immovably held by a private party.
Sure, as long as the work is kept as a deep dark secret. History teaches us that absent copyright, once a work is revealed to someone else, it tends to get copied and redistributed, and there is little chance of the author stopping it. No chance at all if we set aside odious examples of state censorship. Many of the great written works from antiquity, such as Plato or Virgil only exist because there was no copyright and a great deal of unauthorized copying and recopying. If this offends you, if you'd rather have those works lost to us, like so many other classical works are, then there's really little hope for you.
Me, I'm interested in promoting the progress of science. I wouldn't force an author to create a work, and I wouldn't force an author to publish a work, but beyond that, anything is fair game, and it's the public that makes the rules for its own benefit.
ie. giving up all rights to the post and therefore releasing it into the public domain
No, just the enumerated rights. I would imagine that he would retain whatever rights he had which he didn't mention. The entire post would likely not be in the public domain. At least, depending on how much weight the et cetera is afforded.
No, the statement was that remuneration to the author (sales) would not occur with excessive sharing.
No, the statement was:
If you have too much sharing, then there is no longer a means for sales.
I don't see anything there indicating whose sales, or how remunerative the sales have to be. Just that sales are, in fact, possible. I myself have spent money on copies of Shakespeare, as have many others. The publishers find it rewarding enough to keep churning out copies. Shakespeare doesn't see a penny of it. Still, other than the fact that he's dead, nothing is stopping Shakespeare from printing his own copies. If he did, I'd buy one.
The whole situation is known to happen anyway. Night of the Living Dead is infamously in the public domain, and there are loads of different publishers that have released copies, but IIRC, a few of those editions are authorized by Romero himself. He seems to have not given up, as you suggest he would do in that situation. Some authors would, I grant, but the issue is whether the benefit to the public of a lessened copyright monopoly would outweigh the harm of fewer authors creating and publishing works. So long as the new copyright exception was limited to natural persons acting non-commercially (e.g. not using works as a draw for advertising, nor trading works for one another as might be the case with warez ratios, nor charging for access to copies), I think there would indeed be a net benefit. And in any event, file sharing of that general character is extremely widespread anyway. I'm not doing much more than accepting the reality of the situation, similar to people who advocate legalizing, regulating, and taxing marijuana, instead of persisting with banning it outright.
Having written the statement
Well, you are posting anonymously. I've got no problems with that, but it does mean that I've got to guess that all the posts have the same author based on writing style. Besides, it was poorly worded, as shown above, and wrong anyway, as demonstrated.
You do not have the right under free speech to reproduce the work of another.
Well, for the record, I am not Shakespeare. The fact that his work is in the public domain is irrelevant. Nowhere in copyright law does it say that the public has a right to reproduce copies of public domain works. The closest you can get is that for public domain works, there is no copyright holder to tell me that I cannot.
This isn't a big surprise. One of the foundations of traditional English law is that everything is permitted, unless specifically prohibited. The relationship between free speech and copyright is that everyone (being possessed of free speech) can do anything with any work, unless copyright specifically prohibits a particular act with a particular work. Expiration of copyright merely removes the obstacle that impeded the exercise of the underlying free speech right.
This can be seen elsewhere, too. For example, copyright never says that I have a right to read books. Nor does it say that copyright holders have a right to prevent people from reading books. Copyright law is remarkably silent on the entire issue of reading books. But, since I have a protected right to read books (it's implied in the First Amendment; freedom to speak would mean nothing without an audience's freedom to listen) and there's no right of a copyright holder to stop me, I can do it.
without anyone else having ANY right to access it
Well where the hell did that come from? I never said that the free speech right encompassed a right to forcibly gain access to a work, nor would I. If Alice creates a work and keeps it secret, Bob cannot compel her to reveal it. But when Alice shows it to Bob, access has been granted. At that point, copyright is the only thing that can prevent Bob from copying the work and sharing it with the world. If there is no copyright on it, for whatever reason, then we can all guess what will happen next.
While I agree that merely putting a label on something doesn't necessarily make it so, we should at least start by seeing if it might be correct.
So here, he's not granting permission to do something which would otherwise infringe his rights, i.e. granting a license. He's waiving his rights, at least with regard to the specific acts listed, so for someone else to do them has nothing to infringe upon to begin with. So long as it is possible for him to waive those rights (and given the rights in question, it would be stupid for him not to be able to, assuming he's at all competent) the two clauses can thus be reconciled. Ignoring half of what he said would be a worse construction when we can accept it all and still get a viable result.
That's precisely right! Copyrights can be sold in toto, but they can also be divided up as much as you like. They can be licensed, or sold outright, and even sales can be subject to reversions and such, just like with real property.
If an author writes a book, he is free to sell, for $1 each, the right to publish the book to Alice, the right to write and publish a sequel to Bob, and the right to make a movie based on the book to Carol, and the right to publicly read the book aloud (but only on Tuesdays that are odd-numbered days of even-numbered months) to Dave, and retain all the other rights to himself. There's really no limit to what can be done, though of course, when you sell a right away, you can't really sell it again. (Well, actually, the system is sufficiently screwed up that there are ways to do this can that produce weird and unfortunate results. See 17 USC 205 for the gory details.)
Copyright is NOT intended to incentivize the production of new works. It is intended to preserve old works by incentivizing the submission of copyrighted works (e.g. ALL works that you create) to a national archive (the LoC.)
Certainly that is also important, and I am 100% in favor of requiring all works for which a US copyright is sought to have copies deposited in the Library of Congress, and to fund the LoC (out of the general fund; registration fees are there to prevent abuse, like medical insurance co-pays, not to really raise significant amounts of money) so that they are preserved indefinitely. Further, the LoC should place all its public domain works online so that people don't have to trek to DC to use them. This may take some time, I grant.
But the purpose of copyright is to cause the most works possible to be created and published, and to get those works into the hands of the public with as few restrictions as possible, and for those restrictions to lapse as soon as possible. The LoC helps to preserve and make works accessible, but this is more of a subset of the overarching goals than the ultimate goals in and of themselves.
Unfortunately, copyright has been perverted to incentivize the creation of copyrighted works by repeatedly extending copyright terms.
No, actually. Ever longer terms (and broader protection) generally don't incentivize all that much creation and publication. And while it might be nice to maximize the amount of creation and publication, the cost would be so high as to make it pointless. We're better off getting the most creation and publication we can, for the least amount of copyright, and accepting that this means that some works just might wind up not being created. It's okay, though; those works would come at too high a price.
This results not in the creation of new and worthy art, but in the creation of media created solely for commercial purposes, which in turn results only in a race to the bottom. Art created for the sake of art happened before the invention of Copyright law, and copyright law arguably has a chilling effect on the creation of such media because those artists who are motivated solely by appreciation now have to contend with an audience whose mind has been blasted with commercial shit.
Now I have to strongly disagree. Copyright is interested in quantity, not quality. The government isn't competent to judge quality anyway. And copyright is merely one motive to create and publish works. It is not the only motive. Art for art's sake, a desire for fame, etc. are all still just as vibrant as they ever were. There might be some chilling due to rent seeking behavior by copyright holders, but that's quite a different thing than what you're talking about.
The idea of this license is to permit you to release something essentially into the public domain, but in such a way that your creation of the media is a protected fact.
No, actually. Here's a quote from the FAQ that Creative Commons has about the license in question:
Does CC0 require others who use my work to give me attribution?
No, and that's a big difference between CC0 and our licenses. Unlike our licenses, there are no license or other conditions attached to CC0. Just like anything in the public domain, it will be possible for others to use or adapt it however they wish, even without attribution.
The point of this is that the copyright laws in some jurisdictions are so goddamn paternalistic that they prohibit authors from deliberately placing works in the public domain. I for example, place all my Slashdot posts in the public domain as a matter of course. I'm an adult, I'm knowledgeable on the subject, I've given it a lot of thought, and I have decided that I don't want copyrights on my posts here in just the same way that I don't want a hole in my head. And yet some entire countries are such asses that they say that I am not allowed to make that choice; they will protect me from myself. If we w
What you're talking about is enslavement of authors - making them labor for free - making them produce books without pay.
Are you thick or something? No, authors should never be compelled to create or publish works. And frankly, no one here is even talking about that, other than you. It is completely unrelated to the subject at hand, which is basically: Should authors be allowed to make business deals, and then break them without penalty whenever they feel like it, for no better reason than because they are authors? Me, I don't think they should get to do that; we normally only allow children to do that, and authors are not all children. It's insulting to treat them as such, in fact. But that's what the 'pro-author' folks seem to want. I can't imagine why.
Otherwise, without payment, I'm keeping the book to myself as my own personal property/labor.
Be my guest. I can't promise I'll help you, but I won't try to stop you.
If you retain moral rights, you will be able to forbid it is used in those way.
Of course, that's the problem. If you want to maintain control, don't sell the rights. No one is forcing an author to sell his copyrights; he can only do so willingly. He doesn't have to sell all of them; copyrights are damn-near infinitely subdividable. He could trivially license the right to reprint the work in religious tracts, only if they met with his personal approval. He could easily sell the right to reprint the work in political advertising subject to his veto authority.
But if he just goes and sells the whole damn farm, so to speak, well of course that can turn around and bite him on the ass. But it was his decision. It was, perhaps, a stupid decision, but it was his to make, and he freely did it. Authors should be as free to make mistakes, and be treated as adults, as anybody else. Why should authors get to renege on their deals?
Just curious: If J.K. Rowling writes another Harry Potter novel, is she under some "moral rights" obligation to release it?
No, she's under no obligation to release it, nor is she obligated to even write it in the first place. Of course, we can try to encourage her to write and publish another book, and copyright does just that.
In an ideal world, authors wouldn't need to be bribed at all -- they would willingly create and publish as much as they could, and those works would immediately be in the public domain. We don't live in that world, so instead, copyright is like a bribe to an author. If she writes and publishes the book, she can have a copyright that lets her monopolize most of the money that will be made from the book for a span of time. Of course, if the book is a flop, the monopoly isn't really all that valuable; 90% of a pittance is not going to be enough to finance another solid gold rocket car. If the book is a success, the monopoly is very valuable. However, the monopoly has to have limits, and has to eventually expire, since it would be foolish to bribe the author with even one iota more than is strictly necessary. After all, more copyright, in length or breadth, means more limits on the public, which is harmful, and we should always try to minimize harm where differing levels produce the same public benefit (i.e. the created and published work). This is simple efficiency.
I know some people believe authors should have no right of ownership.
That is a valid position. However I think the time is not yet ripe for it. As I said, we want to get the most bang (i.e. quantity of works created and published) for our buck (i.e. limits placed on the public with respect to those works, a.k.a. copyright). It's well known that there is a problem of diminishing returns in copyright. A year of copyright, for example, will be worth more, and thus have more incentivizing effect upon authors, if it is year one of a copyright term, rather than, say, year one million and one. Therefore, if you had copyright terms of 1,000,001 years, and you shortened down to, oh, 25 years, probably no, or nearly no authors would stop creating and/or publishing. This means that the benefit of having all those new works would still be realized, but the detriment of having to suffer through such a long copyright term would be wiped away. This would be a big net gain for the public, and thus, ought to be done.
Copyright abolition is a reasonable idea if adding any copyright at all would produce a harm to the public that was not outweighed by the benefit, yielding a net loss. It's easy to see that this is the case for the one millionth and first year of copyright. It's technically possible that this could be the case for all copyright, but currently, I don't think this is the case. The option of abolition should remain on the table in case future events result in copyright never being beneficial to the public, but we can mostly ignore it.
Do society's rights overrule an individual's property/labor rights?
Labor, no. No one should be forced to create or publish a creative work.
But copyrights are a matter of social utility. They were created to benefit the public, and should only exist to the extent that they actually do so. Individuals don't have copyrights save to the extent that they are granted them by the government, and the government was only empowered to do so by the people to benefit the people; they just coincidentally happen to benefit authors too. Don't confuse the means with the ends.
It might help to compare copyrights with municipal utility monopolies, such as for cable tv. A typical cable tv company will not want to build and maintain infrastructure, and pay to carry programming, where it faces competition, because it feels it won't make enough of a profit. So, when a town wants cable tv set up, the town government will grant a temporary monopoly to the cable tv company that makes the best bid. The monopoly lets the company charge above-market rates, sinc
It may very well depend on the jurisdiction. I'm only familiar with US copyright law, but here, copyright holders are perfectly free to waive their copyrights. If you're burdened with a paternalistic government that prevents you from deliberately doing such a thing, forcing you to jump through hoops even to just approximate what you wish to accomplish, I feel sorry for you.
From my quick skim of the CC0 faq, it appears to be first a public domain dedication, and then for anyone who would ignore that, a nearly-as-broad license to simulate the effect in those other, worse, jurisdictions. Basically, a belt and suspenders approach.
In truth, though, I don't pay much attention to CC. I'd rather see those efforts used toward fixing underlying copyright law, which would have massively broad effects, rather than giving tools to a meager handful of people who see a need, and are willing, to take affirmative steps to ameliorate many of the awful copyright laws that apply normally. To put it another way, if the defaults on a program are set poorly, it's better to fix them, then to waste time changing them on a case-by-case basis.
There is a good reason that it basically doesn't exist. Indeed, it entirely should not exist; moral rights are a stupid idea, with no redeeming features. Don't confuse my hatred for the idea for a lack of understanding. Indeed, if I didn't understand them, I probably wouldn't recognize them for the crap that they are.
It seems to me that moral rights - ie, being recognised as the original author of a particular work - aren't about incentivizing authors.
If it isn't causing more works to be created and published, then it isn't outweighing the harm it causes, and ought not to exist.
their main purpose is more like trademark law: if I see a book written by J.K. Rowling, I want to know that it's actually been written by her, and not by someone else who has been forced to give up their credit.
So I take it that you are morally opposed to the Carolyn Keene corpus of works? Authors should not be compelled to take their names off of their works. But if an author is willing to do so, for whatever reason (usually money), then I trust the author to be the best judge of his own affairs. I won't second-guess him, and I certainly won't muscle in and compel him to do otherwise. If the author later regrets what he's done, then he's learned a good lesson. Just like anyone else who has made a bad deal. Making mistakes is a part of life; why are authors so special that they should be protected from themselves?
As for trademarks, nothing prevents authors from using trademarks to begin with, and many do make use of them. Why have two legal regimes, when one will suffice? Note, incidentally, that trademarks can be created or abandoned, and can be bought and sold. These features do not impair them. Note also that trademarks are meant to serve the public interest by protecting consumers -- specifically by allowing consumers to expect that like-marked goods originate from a common source, and thus are of similar quality. E.g. one bottle of Coke tastes just like another; there's no danger that one bottle will taste like Coke, another like Pepsi, and yet another like Moxie. Moral rights, though, don't serve a public interest. They aren't used to protect the public from deception, but only to protect an author's ego.
I couldn't care less about that, and as authors are demonstrably perfectly willing to create and publish in the absence of an attribution right, they don't actually care about it either, despite whatever noises they might make.
Not if he placed those specific rights (if not the entire post) into the public domain. That is, after all, the only real way to reconcile the two statements, what with the second statement going a bit too far to make it just a restatement of what's permitted by copyright law. Putting things into the public domain doesn't require magic words, though absolutely clear and direct statements are certainly preferable to making people puzzle it out.
Of course, that ignores whether or not authors should have such rights to begin with. Copyrights only ought to be granted if, and to the extent that, they provide a public benefit, ideally the greatest possible public benefit. The creation and publication of works is beneficial, as is having those works as unrestricted as possible, as rapidly as possible. In the US, we traditionally haven't granted moral rights, and we barely do now (most authors don't get them, as it happens). Yet we manage to have incentivized plenty of authors anyway. If a restriction (which is inherently bad) isn't mitigated by anything (as is the case here, with these restrictions having no material incentivizing effect upon authors), it is unjustifiable.
Plus, of course, it's absurd to compare waiving copyright with waving human rights. There is a good reason to not permit people to sell themselves into slavery. There's not a good reason to prohibit selling (or in this case waiving to the public) rights over a mere creative work. Sure, sometimes authors will happen to make a bad deal with a publisher. So what. That can happen to everyone. Should a person who sells land be allowed to take it back many years down the road, when huge oil deposits are discovered there? Authors are not children, and it is insulting and improper for the law to treat them paternalistically.
It does not. No one pays for access to works of Shakespeare in electronic form
And? The complaint was that sales were impossible, not that one specific kind of sale couldn't compete. Don't go changing the facts to support a failed argument.
and the sales of paper copies do not provide any revenue for the creator--which is the purpose of copyright.
No, the purpose of copyright is to promote the progress of science. It may accomplish this by the means of directing revenue toward the copyright holder, but that's not the objective in the least.
Too much sharing reduces the ability for the copyright owner to make sales that provide effective remuneration for his contribution.
In some cases, that may indeed be true. What's your point? No copyright system is ever going to ensure that authors et al have the ability to be remunerated for their work. I, for example, am a moon artist; I reshape, color, and decorate the moon into various creative works. But, unless copyright lasts forever, and anyone who ever looks at, or thinks about, the moon gives me all of the money they'll ever have in their lives, it's just not rewarding enough for me to actually do it. I'm not incentivized enough. Given how you've been proceeding so far, you surely must insist that these reforms take place so that my moon artistry is viable. I, on the other hand, would accept that while a creatively remade moon would be a great thing to have, it apparently would come at too dear a price. Even though society is harmed by lacking an improved moon, we're nevertheless ultimately better off keeping our money.
Now, the interesting thing is, it is likewise entirely possible that society is also better off if anything natural persons do which is not for commercial gain is noninfringing, even if this means that fewer big budget works will be created and published. If an author isn't making enough money, it is perfectly acceptable in light of the goals of copyright for that author to leave art, and take up an exciting career in TV and VCR repair, so long as there is just enough, or too much copyright.
Remember, except in circumstances where no copyright is the optimal amount, there can be too little of it. In that case, we certainly should try to get more works created and published, even though it costs the public in the form of greater restrictions. But where we have too much, we should reduce the incentives to authors because they are too costly; this is the land of diminishing returns. And in the middle, somewhere (probably quite close to 'no copyright,' because the returns start diminishing real fast), is the optimal amount, which is what we obviously want to get our implementation of copyright to.
If it helps, imagine how the world would be if there were: 1) no copyright; 2) copyright for a year; 3) copyright forever. Which do you think would be best? We know that the world can get along okay with no copyright, as that's how the world was for most of its history. Do you really think it'd fare well with eternal copyrights?
On the contrary, you are reading the copyright clause as if no comma exists.
Lack of a comma would be ungrammatical, and it certainly belongs.
The system of copyrights is enacted to incentive creators to create in quantity.
No, it is there to promote the progress of science. It does this, quite cleverly, by encouraging authors to create works, and then by placing those works in the public domain, where they of the greatest use to all. Restricted works are not all that useful. The restrictions impair their availability and use, what with people having finite budgets, works falling out of print, derivative works being unlawful to create without permission, etc. An unrestricted work is as useful as it can get.
If the goal were solely to further the public domain, the incentive rationale would not be valid at all.
No, the goal is solely to further the public domain. It's just that it's a process that occurs over time. We
Public domain works are public domain, so there's no issue with a copyright owner staging a protest. It's irrelevant.
Not at all; the complaint was that without a copyright, sales were impossible: "If you have too much sharing, then there is no longer a means for sales." The sale of copies of public domain works disproves that.
It exists to permit a monopoly holder to engage in economic exploitation of their works in exchange for them providing their works to the public.
Well, not quite. It exists to provide the public with more public domain works. It does this by means of granting an author an economic monopoly temporarily, subject to various exceptions. You're confusing ends with means a bit.
As a result, customers must pay higher prices during the term and also must accept that the bargaining power rests with the one offering the work for distribution.
Well, the bargaining power within the monopoly, sure. The power to define the scope of the monopoly, though, that's ours. We just haven't really been using it as much as we ought to, lately.
but as long as the copyright is in existence, they have absolutely no rights except those they acquire through a legitimate act of law.
Well, it's more that they have all the rights in the work, but they've temporarily, and to a limited extent, ceded some of them. Remember, it's authors who get special rights derived from the rights that everyone else naturally has. Copyright is basically about controlling the free speech of others.
You can apply DRM to a copy of Shakespeare, if you like, and I can break it, if I like.
Shakespeare is public domain, and always has been in the United States.
I'll take that as agreement with my point; that merely because you want control over something doesn't mean that you get it; you have to get it from the rest of us.
Copyright is automatic and naturally vested in moral rights systems, and thanks to Berne and the laws passed in the US to conform with it, that aspect is present in the United States as well.
Yes, that is the system we've been suckered into, but you've misunderstood my point, I'm afraid. I'm saying that there is no natural right of authors to a copyright. Instead, there is a natural right of free speech which runs directly counter to such an idea, and which everyone else possesses as to a particular author's work. This is why I have a right to perform Shakespeare, if I wish, despite not being the author. There's no law that transfers Shakespeare's rights to me; there are laws that transfer control over my inherent right to authors, though. We call it copyright. The flow of rights is important to bear in mind. For starters, it helps to expose how much bullshit the whole "moral rights" idea really is.
We could abolish copyright in this country tomorrow, if we wished. I don't think we ought to, though massive reforms are clearly needed. Authors couldn't stop us, and would have no right to stop us, save that of ordinary citizens or aliens disagreeing with their government. Their copyrights exist at our sufferance, is my point, and the greed of authors and publishers has pretty much brought us to the point at which the public indulgence of authors is at its limit. It may not be pretty when it finally goes.
Entering the public domain is not a natural condition interrupted by copyright, but a transition and a distinction that only exists within a copyright system.
No, you're wrong there, I'm afraid. In the absence of copyright, all works are in the public domain, and in the presence of copyright, all works are in the public domain save to the extent that copyrights are granted. When a copyright expires, nothing special happens for the work to become a fully public domain work, save that the restrictions on it vanish. No rights in the work are granted to the public; rather, we're just finally free to use our natural rights in the work once more.
Slashdot Mirror
I too, am an attorney
Always good to see another attorney on Slashdot.
I would argue 4th amendment on the grounds that by taking possession of the book (seizure) and reading it (search) without the intention of giving it a fair and just opportunity of receiving a copyright violates probable cause.
What?
Remember, we are talking about if federal copyrights were granted or not granted in some manner. While I feel that most decisions as to whether, when, and to whom copyrights shall be granted will be judged on a rational basis standard, you wanted to discuss grants that did not even meet that very low threshold.
Nevertheless, we are still talking about granting (or not granting) copyrights. If the law fails to give Alice a copyright for some otherwise unconstitutional reason, it is not a violation of her Fourth Amendment rights. That amendment protects Alice from having the government making unwarranted intrusions upon her privacy, and searching through her effects. In what possible way does Alice's lack of a copyright result in the police literally breaking down her door, scouring her home for her writings, and taking them away? It is a ludicrous idea. A lack of copyright does not mean a lack of privacy. Indeed, a copyright really is only of value for works that are in the public sphere. With a copyright, if Alice publishes her work, she can prohibit other people, like Bob, from making copies, for example. Without a copyright, if she publishes her work, Bob can copy it freely. But a lack of a copyright doesn't mean Alice is obligated to publish, or even to create. She can keep her works private, if she likes. Without the opportunity to copy, the fact that Bob can legally do so amounts to nothing. Plus, of course, the Fourth Amendment only prohibits state actors (e.g. police) from doing certain things. It doesn't prohibit private individuals from anything at all.
So in short, the idea of trying to overturn copyright laws that did not even have a rational basis on the argument that they violated the Fourth Amendment rights of authors is simply absurd. Frankly, if you tried this in court, you would at the very least face a stern reprimand, and perhaps even a threat of sanctions.
I know the difference between the 5th and 14th amendments. But the 14th amendment provides a higher standard of protection. I would argue that the Federal government should not be held to a lower standard than the states.
They're of basically equal value, post Bolling. The difference is that the Fourteenth Amendment applies to the states, and the Fifth Amendment applies to the federal government. Since we're talking about federal copyright law, the Fourteenth Amendment is facially inapplicable. Again, out would come the reprimands, etc. You do your position no good by raising obviously irrelevant lines of argument.
you argue everything you can conceive of.
Sure, unless it's just plain dumb. I've never heard of a court yet that liked to have its time wasted with frivolous arguments, which is why people generally try to avoid making them. I guess things must be pretty different wherever you're barred.
I could see it being considered a seizure. Granted, it's a little bit of a stretch, but I can see making the argument.
It's an absurd stretch, I think. If Congress doesn't grant a particular author a copyright, this doesn't equate to seizing their work, which in context, means seizing their work as evidence for the purposes of a criminal investigation against the author.
For starters, a seizure implies an affirmative act; failure to grant a copyright is not an affirmative act, or even any kind of act at all. It is as though you are saying that if I have the choice to either give you $5 as a gift, or not, and I haven't even made so much as a promise to you (if it mattered), and I decide not to give you the money, that this means I have robbed you. As I said, absurd.
Oh, and you might also want to look into the differences between the Fifth and Fourteenth Amendment. Since we're talking about federal copyright law, it would only be the Fifth that would be relevant.
Well, I dunno. I think that you'll find that everyday copyright legislation would be judged on a rational basis standard. Sure, if copyrights were whites-only or something, that would be overturned, and rightly so. But granting copyrights only for books and maps, and not for music, or visual arts, would likely stand, even though it treats different classes of works, and thus authors, differently.
Off the top of my head, the 4th, 5th, and 14th amendments and the General Welfare clause
Not granting copyrights is not at all the same as forcing authors to create and publish works; it's just a failure to encourage authors to do so, and to protect authors that have voluntarily done so. And bearing that in mind, I would love to hear why even outrageously discriminatory copyright grants would violate the Fourth Amendment.
As others have noted, the US has had federal copyrights since 1790, and state copyrights slightly before that. But for quite a while we only granted them to US citizens. When foreign authors would complain that they wanted US copyrights, the standard reply was to invite them to emigrate to the US.
Personally, while I loathe the idea of copyright treaties, since they hinder important reforms, such as shorter terms, lesser protection, registration formalities, etc., I do think that the US ought to unilaterally grant national treatment (i.e. treating foreign authors just the same as domestic ones). After all, the point of copyright is to promote the progress of science, and the nationality of the author really isn't important in that light.
There are other reasons, and even other ways to make money without needing a monopoly. Other factors drive progress, as well, often more than a monopoly could or does. Human civilization got all the way from clubs and cave paintings to guns and the Old Masters before either patents or copyrights were invented.
I don't think we should totally abolish patents or copyrights, but neither should we think of them as absolutely essential. We should have them to the degree that they're useful for society (ideally to the degree that they are maximally useful), no more, no less.
A man has the right to the product of his mind, and to do with it what he sees fit.
I agree. The problem is that when you share what's on your mind with everyone else, now it is in our minds too, and we can use it just as well as you could. You're arguing against intellectual freedom and censorship. To argue in favor of copyright, you have to say that Alice has the right to censor Bob, merely because Bob is repeating what Alice said first. There may be a good reason to do this, but the right to censor others for no other reason than the provenance of what they say could only be artificial in origin. It's granted by the people who are being censored, in fact, which means you'll essentially need their consent, which is unlikely to be granted unless they're benefiting from it somehow.
No, it says that Congress has the power to secure it, if Congress so wishes. There is no Constitutional obligation, though.
As for your essay, while I'd agree with you on some issues, and disagree with you on many others, I don't really see the point.
There are really only three options for an author who would see his works published. First, make a deal with a publisher. As there are a lot of authors (who tend to be bad at making deals) and rather fewer publishers (who tend to be quite good at making deals), the author is probably going to get a bad deal. Second, self-publish, but this is often inefficient, as authors are unlikely to get the best deals, or have working relationships with retailers, big-name reviewers, etc. The Internet is making this a little easier, but not a whole lot easier, unless your sights are set low (e.g. being the top dog of some sort of fanfic community). Third, for the law to treat authors paternalistically, not allowing them to make deals which outsiders viewed as bad (by letting the authors terminate transfers, or be unable to sell the entirety of their rights in a work). This is offensive, and it certainly isn't in keeping with the normal level of government involvement in business dealings. If the author were selling land to a developer, we'd certainly let him make a bad deal.
This is what we have under a normal copyright system, and I don't see how your somewhat Lockean approach really would help authors any.
It does not suggest a functional method of maintaining the appropriate balance
Sure it does, especially given that I propose that his competition would merely be people acting non-commercially; no one else could perform the film in a theater for admission, nor sell copies on video, or provide downloads in conjunction with ads, or in exchange for other works. I daresay he'd wind up better off than he ultimately did.
A copy is precisely what we're talking about--if the work doesn't exist in physical form, the whole discussion is moot.
No. First, because despite your confusion on the issue, I've always maintained that the public's rights deal with intangible works. Not copies, which are perfectly ordinary personal property and can be treated as such. Second, the public has rights even as to unfixed works, if published (in the previously discussed broad sense of the term) to the public, such as improvised music or performances. The long term preservation of works is aided a lot by fixation, so the copyright system encourages authors to do so. If they don't, it is perfectly in keeping with the goals of copyright to open the field to anyone to fix the work instead. Of course, cf. with the copyright maximalists who, in order to "protect artists" who fail to fix their own works, prohibit others to fix the works, ensuring that the works are lost to the ages. Don't even try to tell me that that promotes the progress of science.
When literacy was low and printing presses were hard to come by, there was built-in protection.
Except, of course, that anyone who did happen to get a copy of a work could use it freely. I'd be shocked if this didn't routinely happen. Besides, the very idea of copyright didn't even exist in the short span of time when presses were rare.
A certain group of designated individuals, who gained legitimate access to the scrolls, had official permission to copy them for the library.
The legitimate access was gained because the local government simply ordered it so; the wishes of the authors or even the owners of the copies were utterly irrelevant. And that government was the source of the official permission. It is astonishing that you would cite this to support the idea that authors are the masters of their works. For your next trick, I'd like to request proof that black is white, or that war is peace.
People do not have the individual authority to make judgments on rights guaranteed by laws.
Such as the legally guaranteed right of a southern lunch counter to deny sit-down service to black patrons? The right of a distant Parliament to govern its colonies as it saw fit, without their involvement? Copyright is not nearly so vital an issue, but we've got to start somewhere.
The entire question of what operates outside the rule of law is moot. The rule of law is in operation.
Laws don't spring out of nowhere, though. Their origin and source of authority should always be borne in mind. No law just automatically has the power to rule, as it were. It must be earned. And a displeasing law is quite rightly subject to amendment or repeal. Copyright law, while an excellent idea, has become deeply offensive to the public it is meant to serve first and foremost. I'm all for the rule of law, so long as the law is deserving. I merely suggest that the time has long since come to replace the current copyright law with one that deserves respect and obedience. Again, the lesson of Prohibition should be heeded.
The weasel word there could not be more plain or more telling.
We also have the world's second through thirteenth, copyright laws (IIRC, Rhode Island didn't have one), but there's a good reason they're usually not brought up. The states really made a shamble of things during the Articles of Confederacy period, which is why we wound up quickly scrapping our first national government and creating a replacement, which is still the one that we have to this day. Most of the powers that Congress is vest
'Demonstrably' presumes a demonstration, which you have not achieved.
The Romero example; it's a public domain work, many publishers sell copies, and the author sells copies as well.
Of course, I advocate the legalization of otherwise infringing non-commercial behavior engaged in by natural persons. So while there would be some effect on the market for authorized copies of the work, whatever market remained would still largely be monopolized by the copyright holder. So really, the example goes a little further than it strictly needs to.
It's not the use of privacy rights, but simply the use of property rights.
There is no property. A copy is property, but that's not what we're talking about. A copyright is arguably property, but that too is not what we're talking about. A work isn't property. If it were, we wouldn't need copyright; ordinary personal property law would do nicely. The principle reason that a work can't be property is its inherent non-rivalrous nature. An author can share a work, but he can't actually dispose of it, nor can he recover it. You'll already be aware of this, as Jefferson was discussing it earlier. Frankly, creative works, along with inventions, and ideas generally, were practically designed by God to not be property. They can't help but spread, and unless they die due to inattention, they're pretty much impossible to contain or destroy.
Prior to copyright and its functional predecessors, works were not published as we understand the term.
There are no functional predecessors to copyright, save for systems of censorship and monopoly. There's a reason no one points to the stationers' copyright and says 'That was a good idea.' Copyright began with the Statute of Anne. Anything prior might have a similar name, but that's about it.
Further, while the definition of publication for copyright law purposes focuses on publication in copies, this is really little more than an accident in the evolution of the law. It's more accurate -- and on the list of issues to be addressed in the coming reform -- to think of publication as exposing the work to the public by any means. Public performance or display would do quite nicely. And given that widespread literacy is a fairly recent phenomenon, unfixed publication was pretty much the only way to exploit many creative works. Also, you are forgetting about newspapers.
nothing gave the public an intrinsic right to achieve access to them
And I've said all along that nothing gives the public an intrinsic right to access privately kept copies, period. The intrinsic right is to copy and distribute the works, should access to the copies be achieved through some means. Once someone starts doing this, though, access to the work by the public at large is generally going to occur.
A truly bizarre statement considering that the works that survived are ones of common cultural heritage that had all become sufficiently public by the acts of their creators so as to be preserved.
Well, no. Consider Alexandria, for example. The law of the city was that any scroll that arrived (and which was of interest) would be copied, to enlarge the collection of their famous library. We don't really know the provenance of all the surviving works of the classical world, but what with them being copied by one group and then another and so on, it's not really difficult to imagine that there were times that works were preserved and disseminated against the wishes of their creators.
There are even modern examples along these lines. Kafka wanted all of his works destroyed upon his death, but his executor wisely ignored that wish. Quite famously, Nabokov wanted his last MS destroyed, and after dithering over it for the last few decades, his family has finally decided to publish. Presumably everyone is happy about this other than Nabokov, who no one actually cares about.
And of course, there's Agrippa, which people have worked to preserve, lest it be lost, which is actually what is suppo
IT HAS BEEN CLARIFIED
Sure, but even as clarified, it's still demonstrably incorrect.
A work, when created, is solely, exclusively, permanently private, owned as to all applicable legal rights by its creator. Any use of that work is a legal injury.
No, I disagree. A work, having been created, may be kept private. But they often aren't, and once revealed to the public, it is no longer shielded by whatever privacy rights that were employed to do so. And while a particular party who infringes on those privacy rights might face legal action for his trespass, if the work gets revealed to the whole world, it's simply not possible to use privacy rights to hold the whole world to account. After all, they're not the ones who infringed, they aren't aware of the dastardly way in which the work reached them, and except in the most limited circumstances, no remedy can actually serve to make the author whole. Post-publication is the point at which copyright becomes useful, even if the publication was wrongful. Your attempts to unring the bell will not be fruitful; it's better to deal with it and move on.
The third party does not have a right to exceed the terms of his access; the public does not have a right through him to make demands; any breach is subject to damages.
There are no demands by the public here, but if a trade secret is sufficiently breached -- say, if everyone in the world was sent a copy of the secret recipe for Coke -- it just cannot be repaired. You can't have a trade secret that isn't secret.
The public has rights in works upon creation, but they're essentially moot, for a lack of access, which is one thing that the public doesn't have a right to compel. This might seem odd, but given that the author can't grant affirmative rights to the work (he, after all, relies on his free speech right to actually do things; copyright is merely the right to deny others the right to exercise their inherent rights), nor can anyone else, it's the only way that we can describe reality. Fatal flaws in your hypothesis have already been pointed out; I won't bother with getting into them yet again.
that is only one sense of the word natural
Well, for the idea of natural rights, I've seen no one better than Hobbes. Where you're coming from, who knows.
Absent a copyright, the works remain fully and immovably held by a private party.
Sure, as long as the work is kept as a deep dark secret. History teaches us that absent copyright, once a work is revealed to someone else, it tends to get copied and redistributed, and there is little chance of the author stopping it. No chance at all if we set aside odious examples of state censorship. Many of the great written works from antiquity, such as Plato or Virgil only exist because there was no copyright and a great deal of unauthorized copying and recopying. If this offends you, if you'd rather have those works lost to us, like so many other classical works are, then there's really little hope for you.
Me, I'm interested in promoting the progress of science. I wouldn't force an author to create a work, and I wouldn't force an author to publish a work, but beyond that, anything is fair game, and it's the public that makes the rules for its own benefit.
ie. giving up all rights to the post and therefore releasing it into the public domain
No, just the enumerated rights. I would imagine that he would retain whatever rights he had which he didn't mention. The entire post would likely not be in the public domain. At least, depending on how much weight the et cetera is afforded.
And yes, it was a silly post.
No, the statement was that remuneration to the author (sales) would not occur with excessive sharing.
No, the statement was:
If you have too much sharing, then there is no longer a means for sales.
I don't see anything there indicating whose sales, or how remunerative the sales have to be. Just that sales are, in fact, possible. I myself have spent money on copies of Shakespeare, as have many others. The publishers find it rewarding enough to keep churning out copies. Shakespeare doesn't see a penny of it. Still, other than the fact that he's dead, nothing is stopping Shakespeare from printing his own copies. If he did, I'd buy one.
The whole situation is known to happen anyway. Night of the Living Dead is infamously in the public domain, and there are loads of different publishers that have released copies, but IIRC, a few of those editions are authorized by Romero himself. He seems to have not given up, as you suggest he would do in that situation. Some authors would, I grant, but the issue is whether the benefit to the public of a lessened copyright monopoly would outweigh the harm of fewer authors creating and publishing works. So long as the new copyright exception was limited to natural persons acting non-commercially (e.g. not using works as a draw for advertising, nor trading works for one another as might be the case with warez ratios, nor charging for access to copies), I think there would indeed be a net benefit. And in any event, file sharing of that general character is extremely widespread anyway. I'm not doing much more than accepting the reality of the situation, similar to people who advocate legalizing, regulating, and taxing marijuana, instead of persisting with banning it outright.
Having written the statement
Well, you are posting anonymously. I've got no problems with that, but it does mean that I've got to guess that all the posts have the same author based on writing style. Besides, it was poorly worded, as shown above, and wrong anyway, as demonstrated.
You do not have the right under free speech to reproduce the work of another.
Well, for the record, I am not Shakespeare. The fact that his work is in the public domain is irrelevant. Nowhere in copyright law does it say that the public has a right to reproduce copies of public domain works. The closest you can get is that for public domain works, there is no copyright holder to tell me that I cannot.
This isn't a big surprise. One of the foundations of traditional English law is that everything is permitted, unless specifically prohibited. The relationship between free speech and copyright is that everyone (being possessed of free speech) can do anything with any work, unless copyright specifically prohibits a particular act with a particular work. Expiration of copyright merely removes the obstacle that impeded the exercise of the underlying free speech right.
This can be seen elsewhere, too. For example, copyright never says that I have a right to read books. Nor does it say that copyright holders have a right to prevent people from reading books. Copyright law is remarkably silent on the entire issue of reading books. But, since I have a protected right to read books (it's implied in the First Amendment; freedom to speak would mean nothing without an audience's freedom to listen) and there's no right of a copyright holder to stop me, I can do it.
without anyone else having ANY right to access it
Well where the hell did that come from? I never said that the free speech right encompassed a right to forcibly gain access to a work, nor would I. If Alice creates a work and keeps it secret, Bob cannot compel her to reveal it. But when Alice shows it to Bob, access has been granted. At that point, copyright is the only thing that can prevent Bob from copying the work and sharing it with the world. If there is no copyright on it, for whatever reason, then we can all guess what will happen next.
As it happens, a goal
While I agree that merely putting a label on something doesn't necessarily make it so, we should at least start by seeing if it might be correct.
So here, he's not granting permission to do something which would otherwise infringe his rights, i.e. granting a license. He's waiving his rights, at least with regard to the specific acts listed, so for someone else to do them has nothing to infringe upon to begin with. So long as it is possible for him to waive those rights (and given the rights in question, it would be stupid for him not to be able to, assuming he's at all competent) the two clauses can thus be reconciled. Ignoring half of what he said would be a worse construction when we can accept it all and still get a viable result.
That's precisely right! Copyrights can be sold in toto, but they can also be divided up as much as you like. They can be licensed, or sold outright, and even sales can be subject to reversions and such, just like with real property.
If an author writes a book, he is free to sell, for $1 each, the right to publish the book to Alice, the right to write and publish a sequel to Bob, and the right to make a movie based on the book to Carol, and the right to publicly read the book aloud (but only on Tuesdays that are odd-numbered days of even-numbered months) to Dave, and retain all the other rights to himself. There's really no limit to what can be done, though of course, when you sell a right away, you can't really sell it again. (Well, actually, the system is sufficiently screwed up that there are ways to do this can that produce weird and unfortunate results. See 17 USC 205 for the gory details.)
Copyright is NOT intended to incentivize the production of new works. It is intended to preserve old works by incentivizing the submission of copyrighted works (e.g. ALL works that you create) to a national archive (the LoC.)
Certainly that is also important, and I am 100% in favor of requiring all works for which a US copyright is sought to have copies deposited in the Library of Congress, and to fund the LoC (out of the general fund; registration fees are there to prevent abuse, like medical insurance co-pays, not to really raise significant amounts of money) so that they are preserved indefinitely. Further, the LoC should place all its public domain works online so that people don't have to trek to DC to use them. This may take some time, I grant.
But the purpose of copyright is to cause the most works possible to be created and published, and to get those works into the hands of the public with as few restrictions as possible, and for those restrictions to lapse as soon as possible. The LoC helps to preserve and make works accessible, but this is more of a subset of the overarching goals than the ultimate goals in and of themselves.
Unfortunately, copyright has been perverted to incentivize the creation of copyrighted works by repeatedly extending copyright terms.
No, actually. Ever longer terms (and broader protection) generally don't incentivize all that much creation and publication. And while it might be nice to maximize the amount of creation and publication, the cost would be so high as to make it pointless. We're better off getting the most creation and publication we can, for the least amount of copyright, and accepting that this means that some works just might wind up not being created. It's okay, though; those works would come at too high a price.
This results not in the creation of new and worthy art, but in the creation of media created solely for commercial purposes, which in turn results only in a race to the bottom. Art created for the sake of art happened before the invention of Copyright law, and copyright law arguably has a chilling effect on the creation of such media because those artists who are motivated solely by appreciation now have to contend with an audience whose mind has been blasted with commercial shit.
Now I have to strongly disagree. Copyright is interested in quantity, not quality. The government isn't competent to judge quality anyway. And copyright is merely one motive to create and publish works. It is not the only motive. Art for art's sake, a desire for fame, etc. are all still just as vibrant as they ever were. There might be some chilling due to rent seeking behavior by copyright holders, but that's quite a different thing than what you're talking about.
The idea of this license is to permit you to release something essentially into the public domain, but in such a way that your creation of the media is a protected fact.
No, actually. Here's a quote from the FAQ that Creative Commons has about the license in question:
Does CC0 require others who use my work to give me attribution?
No, and that's a big difference between CC0 and our licenses. Unlike our licenses, there are no license or other conditions attached to CC0. Just like anything in the public domain, it will be possible for others to use or adapt it however they wish, even without attribution.
The point of this is that the copyright laws in some jurisdictions are so goddamn paternalistic that they prohibit authors from deliberately placing works in the public domain. I for example, place all my Slashdot posts in the public domain as a matter of course. I'm an adult, I'm knowledgeable on the subject, I've given it a lot of thought, and I have decided that I don't want copyrights on my posts here in just the same way that I don't want a hole in my head. And yet some entire countries are such asses that they say that I am not allowed to make that choice; they will protect me from myself. If we w
What you're talking about is enslavement of authors - making them labor for free - making them produce books without pay.
Are you thick or something? No, authors should never be compelled to create or publish works. And frankly, no one here is even talking about that, other than you. It is completely unrelated to the subject at hand, which is basically: Should authors be allowed to make business deals, and then break them without penalty whenever they feel like it, for no better reason than because they are authors? Me, I don't think they should get to do that; we normally only allow children to do that, and authors are not all children. It's insulting to treat them as such, in fact. But that's what the 'pro-author' folks seem to want. I can't imagine why.
Otherwise, without payment, I'm keeping the book to myself as my own personal property/labor.
Be my guest. I can't promise I'll help you, but I won't try to stop you.
If you retain moral rights, you will be able to forbid it is used in those way.
Of course, that's the problem. If you want to maintain control, don't sell the rights. No one is forcing an author to sell his copyrights; he can only do so willingly. He doesn't have to sell all of them; copyrights are damn-near infinitely subdividable. He could trivially license the right to reprint the work in religious tracts, only if they met with his personal approval. He could easily sell the right to reprint the work in political advertising subject to his veto authority.
But if he just goes and sells the whole damn farm, so to speak, well of course that can turn around and bite him on the ass. But it was his decision. It was, perhaps, a stupid decision, but it was his to make, and he freely did it. Authors should be as free to make mistakes, and be treated as adults, as anybody else. Why should authors get to renege on their deals?
Just curious: If J.K. Rowling writes another Harry Potter novel, is she under some "moral rights" obligation to release it?
No, she's under no obligation to release it, nor is she obligated to even write it in the first place. Of course, we can try to encourage her to write and publish another book, and copyright does just that.
In an ideal world, authors wouldn't need to be bribed at all -- they would willingly create and publish as much as they could, and those works would immediately be in the public domain. We don't live in that world, so instead, copyright is like a bribe to an author. If she writes and publishes the book, she can have a copyright that lets her monopolize most of the money that will be made from the book for a span of time. Of course, if the book is a flop, the monopoly isn't really all that valuable; 90% of a pittance is not going to be enough to finance another solid gold rocket car. If the book is a success, the monopoly is very valuable. However, the monopoly has to have limits, and has to eventually expire, since it would be foolish to bribe the author with even one iota more than is strictly necessary. After all, more copyright, in length or breadth, means more limits on the public, which is harmful, and we should always try to minimize harm where differing levels produce the same public benefit (i.e. the created and published work). This is simple efficiency.
I know some people believe authors should have no right of ownership.
That is a valid position. However I think the time is not yet ripe for it. As I said, we want to get the most bang (i.e. quantity of works created and published) for our buck (i.e. limits placed on the public with respect to those works, a.k.a. copyright). It's well known that there is a problem of diminishing returns in copyright. A year of copyright, for example, will be worth more, and thus have more incentivizing effect upon authors, if it is year one of a copyright term, rather than, say, year one million and one. Therefore, if you had copyright terms of 1,000,001 years, and you shortened down to, oh, 25 years, probably no, or nearly no authors would stop creating and/or publishing. This means that the benefit of having all those new works would still be realized, but the detriment of having to suffer through such a long copyright term would be wiped away. This would be a big net gain for the public, and thus, ought to be done.
Copyright abolition is a reasonable idea if adding any copyright at all would produce a harm to the public that was not outweighed by the benefit, yielding a net loss. It's easy to see that this is the case for the one millionth and first year of copyright. It's technically possible that this could be the case for all copyright, but currently, I don't think this is the case. The option of abolition should remain on the table in case future events result in copyright never being beneficial to the public, but we can mostly ignore it.
Do society's rights overrule an individual's property/labor rights?
Labor, no. No one should be forced to create or publish a creative work.
But copyrights are a matter of social utility. They were created to benefit the public, and should only exist to the extent that they actually do so. Individuals don't have copyrights save to the extent that they are granted them by the government, and the government was only empowered to do so by the people to benefit the people; they just coincidentally happen to benefit authors too. Don't confuse the means with the ends.
It might help to compare copyrights with municipal utility monopolies, such as for cable tv. A typical cable tv company will not want to build and maintain infrastructure, and pay to carry programming, where it faces competition, because it feels it won't make enough of a profit. So, when a town wants cable tv set up, the town government will grant a temporary monopoly to the cable tv company that makes the best bid. The monopoly lets the company charge above-market rates, sinc
It may very well depend on the jurisdiction. I'm only familiar with US copyright law, but here, copyright holders are perfectly free to waive their copyrights. If you're burdened with a paternalistic government that prevents you from deliberately doing such a thing, forcing you to jump through hoops even to just approximate what you wish to accomplish, I feel sorry for you.
From my quick skim of the CC0 faq, it appears to be first a public domain dedication, and then for anyone who would ignore that, a nearly-as-broad license to simulate the effect in those other, worse, jurisdictions. Basically, a belt and suspenders approach.
In truth, though, I don't pay much attention to CC. I'd rather see those efforts used toward fixing underlying copyright law, which would have massively broad effects, rather than giving tools to a meager handful of people who see a need, and are willing, to take affirmative steps to ameliorate many of the awful copyright laws that apply normally. To put it another way, if the defaults on a program are set poorly, it's better to fix them, then to waste time changing them on a case-by-case basis.
because the concept basically doesn't exist
There is a good reason that it basically doesn't exist. Indeed, it entirely should not exist; moral rights are a stupid idea, with no redeeming features. Don't confuse my hatred for the idea for a lack of understanding. Indeed, if I didn't understand them, I probably wouldn't recognize them for the crap that they are.
It seems to me that moral rights - ie, being recognised as the original author of a particular work - aren't about incentivizing authors.
If it isn't causing more works to be created and published, then it isn't outweighing the harm it causes, and ought not to exist.
their main purpose is more like trademark law: if I see a book written by J.K. Rowling, I want to know that it's actually been written by her, and not by someone else who has been forced to give up their credit.
So I take it that you are morally opposed to the Carolyn Keene corpus of works? Authors should not be compelled to take their names off of their works. But if an author is willing to do so, for whatever reason (usually money), then I trust the author to be the best judge of his own affairs. I won't second-guess him, and I certainly won't muscle in and compel him to do otherwise. If the author later regrets what he's done, then he's learned a good lesson. Just like anyone else who has made a bad deal. Making mistakes is a part of life; why are authors so special that they should be protected from themselves?
As for trademarks, nothing prevents authors from using trademarks to begin with, and many do make use of them. Why have two legal regimes, when one will suffice? Note, incidentally, that trademarks can be created or abandoned, and can be bought and sold. These features do not impair them. Note also that trademarks are meant to serve the public interest by protecting consumers -- specifically by allowing consumers to expect that like-marked goods originate from a common source, and thus are of similar quality. E.g. one bottle of Coke tastes just like another; there's no danger that one bottle will taste like Coke, another like Pepsi, and yet another like Moxie. Moral rights, though, don't serve a public interest. They aren't used to protect the public from deception, but only to protect an author's ego.
I couldn't care less about that, and as authors are demonstrably perfectly willing to create and publish in the absence of an attribution right, they don't actually care about it either, despite whatever noises they might make.
So without a license, what you say below is false
Not if he placed those specific rights (if not the entire post) into the public domain. That is, after all, the only real way to reconcile the two statements, what with the second statement going a bit too far to make it just a restatement of what's permitted by copyright law. Putting things into the public domain doesn't require magic words, though absolutely clear and direct statements are certainly preferable to making people puzzle it out.
Of course, that ignores whether or not authors should have such rights to begin with. Copyrights only ought to be granted if, and to the extent that, they provide a public benefit, ideally the greatest possible public benefit. The creation and publication of works is beneficial, as is having those works as unrestricted as possible, as rapidly as possible. In the US, we traditionally haven't granted moral rights, and we barely do now (most authors don't get them, as it happens). Yet we manage to have incentivized plenty of authors anyway. If a restriction (which is inherently bad) isn't mitigated by anything (as is the case here, with these restrictions having no material incentivizing effect upon authors), it is unjustifiable.
Plus, of course, it's absurd to compare waiving copyright with waving human rights. There is a good reason to not permit people to sell themselves into slavery. There's not a good reason to prohibit selling (or in this case waiving to the public) rights over a mere creative work. Sure, sometimes authors will happen to make a bad deal with a publisher. So what. That can happen to everyone. Should a person who sells land be allowed to take it back many years down the road, when huge oil deposits are discovered there? Authors are not children, and it is insulting and improper for the law to treat them paternalistically.
It does not. No one pays for access to works of Shakespeare in electronic form
And? The complaint was that sales were impossible, not that one specific kind of sale couldn't compete. Don't go changing the facts to support a failed argument.
and the sales of paper copies do not provide any revenue for the creator--which is the purpose of copyright.
No, the purpose of copyright is to promote the progress of science. It may accomplish this by the means of directing revenue toward the copyright holder, but that's not the objective in the least.
Too much sharing reduces the ability for the copyright owner to make sales that provide effective remuneration for his contribution.
In some cases, that may indeed be true. What's your point? No copyright system is ever going to ensure that authors et al have the ability to be remunerated for their work. I, for example, am a moon artist; I reshape, color, and decorate the moon into various creative works. But, unless copyright lasts forever, and anyone who ever looks at, or thinks about, the moon gives me all of the money they'll ever have in their lives, it's just not rewarding enough for me to actually do it. I'm not incentivized enough. Given how you've been proceeding so far, you surely must insist that these reforms take place so that my moon artistry is viable. I, on the other hand, would accept that while a creatively remade moon would be a great thing to have, it apparently would come at too dear a price. Even though society is harmed by lacking an improved moon, we're nevertheless ultimately better off keeping our money.
Now, the interesting thing is, it is likewise entirely possible that society is also better off if anything natural persons do which is not for commercial gain is noninfringing, even if this means that fewer big budget works will be created and published. If an author isn't making enough money, it is perfectly acceptable in light of the goals of copyright for that author to leave art, and take up an exciting career in TV and VCR repair, so long as there is just enough, or too much copyright.
Remember, except in circumstances where no copyright is the optimal amount, there can be too little of it. In that case, we certainly should try to get more works created and published, even though it costs the public in the form of greater restrictions. But where we have too much, we should reduce the incentives to authors because they are too costly; this is the land of diminishing returns. And in the middle, somewhere (probably quite close to 'no copyright,' because the returns start diminishing real fast), is the optimal amount, which is what we obviously want to get our implementation of copyright to.
If it helps, imagine how the world would be if there were: 1) no copyright; 2) copyright for a year; 3) copyright forever. Which do you think would be best? We know that the world can get along okay with no copyright, as that's how the world was for most of its history. Do you really think it'd fare well with eternal copyrights?
On the contrary, you are reading the copyright clause as if no comma exists.
Lack of a comma would be ungrammatical, and it certainly belongs.
The system of copyrights is enacted to incentive creators to create in quantity.
No, it is there to promote the progress of science. It does this, quite cleverly, by encouraging authors to create works, and then by placing those works in the public domain, where they of the greatest use to all. Restricted works are not all that useful. The restrictions impair their availability and use, what with people having finite budgets, works falling out of print, derivative works being unlawful to create without permission, etc. An unrestricted work is as useful as it can get.
If the goal were solely to further the public domain, the incentive rationale would not be valid at all.
No, the goal is solely to further the public domain. It's just that it's a process that occurs over time. We
Public domain works are public domain, so there's no issue with a copyright owner staging a protest. It's irrelevant.
Not at all; the complaint was that without a copyright, sales were impossible: "If you have too much sharing, then there is no longer a means for sales." The sale of copies of public domain works disproves that.
It exists to permit a monopoly holder to engage in economic exploitation of their works in exchange for them providing their works to the public.
Well, not quite. It exists to provide the public with more public domain works. It does this by means of granting an author an economic monopoly temporarily, subject to various exceptions. You're confusing ends with means a bit.
As a result, customers must pay higher prices during the term and also must accept that the bargaining power rests with the one offering the work for distribution.
Well, the bargaining power within the monopoly, sure. The power to define the scope of the monopoly, though, that's ours. We just haven't really been using it as much as we ought to, lately.
but as long as the copyright is in existence, they have absolutely no rights except those they acquire through a legitimate act of law.
Well, it's more that they have all the rights in the work, but they've temporarily, and to a limited extent, ceded some of them. Remember, it's authors who get special rights derived from the rights that everyone else naturally has. Copyright is basically about controlling the free speech of others.
You can apply DRM to a copy of Shakespeare, if you like, and I can break it, if I like.
Shakespeare is public domain, and always has been in the United States.
I'll take that as agreement with my point; that merely because you want control over something doesn't mean that you get it; you have to get it from the rest of us.
Copyright is automatic and naturally vested in moral rights systems, and thanks to Berne and the laws passed in the US to conform with it, that aspect is present in the United States as well.
Yes, that is the system we've been suckered into, but you've misunderstood my point, I'm afraid. I'm saying that there is no natural right of authors to a copyright. Instead, there is a natural right of free speech which runs directly counter to such an idea, and which everyone else possesses as to a particular author's work. This is why I have a right to perform Shakespeare, if I wish, despite not being the author. There's no law that transfers Shakespeare's rights to me; there are laws that transfer control over my inherent right to authors, though. We call it copyright. The flow of rights is important to bear in mind. For starters, it helps to expose how much bullshit the whole "moral rights" idea really is.
We could abolish copyright in this country tomorrow, if we wished. I don't think we ought to, though massive reforms are clearly needed. Authors couldn't stop us, and would have no right to stop us, save that of ordinary citizens or aliens disagreeing with their government. Their copyrights exist at our sufferance, is my point, and the greed of authors and publishers has pretty much brought us to the point at which the public indulgence of authors is at its limit. It may not be pretty when it finally goes.
Entering the public domain is not a natural condition interrupted by copyright, but a transition and a distinction that only exists within a copyright system.
No, you're wrong there, I'm afraid. In the absence of copyright, all works are in the public domain, and in the presence of copyright, all works are in the public domain save to the extent that copyrights are granted. When a copyright expires, nothing special happens for the work to become a fully public domain work, save that the restrictions on it vanish. No rights in the work are granted to the public; rather, we're just finally free to use our natural rights in the work once more.
If it helps, imagine it lik