If you have too much sharing, then there is no longer a means for sales.
No, that's going too far. People sell copies of public domain works all the time. Go to any decent bookstore, and you'll find copies of Dickens, Hugo, Twain, etc.
Frankly, it's not for you or anyone else to judge how they choose to profit from their creations.
Well, to some extent it is. The people empowered the government to enact copyright laws meant to benefit the people. Copyright doesn't originate from authors, and is not meant to serve their interests, save as a mere means to an end. (Much like how a farmer might give his mule a carrot to encourage it to pull a cart to market, but wouldn't waste a carrot on the mule for no self-serving reason)
Ultimately, we set the rules, and we set them to benefit ourselves. The trouble we've been having lately is that our representatives, who are supposed to be acting in our interests, have been corrupted or confused, and are not only acting as dictated by third parties, they are often acting against the public interest. It's a problem that demands our attention.
I have no problem with authors profiting from their work. But if they wish to profit by means of a monopoly that prevents everyone else from using their work as we see fit, then there's a pretty big problem. Why would I ever give an author such power unless I gained more by doing so than I lost? Thus, how they choose to profit from their work becomes a question I, and everyone else, needs to judge, since apparently no one else has our interests in mind.
Thus:
If they want to sell very limited copies for money
If they want to sell very limited copies for money, it's ultimately up to everyone else to decide whether those limits ought to be enforceable, or even respected. You can apply DRM to a copy of Shakespeare, if you like, and I can break it, if I like. If you want a copyright, you'll have to convince me that it leaves me better off to grant you one.
It's not for people to overstep their authority simply because they can do it easily.
It's a factor. Copyright law must serve the public interest in encouraging works to be created and published, with as few restrictions on those works as possible, for the shortest period of time. That is, getting the most bang for our buck. But it also needs to conform to social norms. It's always good for the law to be obeyed not only out of respect for the law, but because people would be apt to engage in that behavior anyway. When law and norms conflict, people tend to follow norms. When people disrespect one law, this can breed disrespect for more; that's dangerous. And since the law is meant to serve the people, the people are usually in the right in these matters. Sometimes it is worth trying to change social norms -- the civil rights era is a good example of this -- but it often isn't -- such as Prohibition. I'd say that copyright is one of those laws where it needs to submit to norms, rather than the other way around. Thus, piracy amongst individuals, not acting for profit, really ought to be made lawful, since virtually everyone seems to do it anyway, while commercial piracy, which most people are opposed to, could remain infringing.
-it's nothing more than simple greed and dishonesty
I fail to see the dishonesty. As for the greed, sure. So what? Copyright is based upon greed. It incentivizes authors to create, by playing on their greed for the money that the temporary monopoly can direct toward them. And it exists because the public has a insatiable greed for more creative works, and for those works to be as unrestricted as possible, as fast as possible, so that they can be acquired for free, and freely used. Don't dis greed.
Borrowing and sharing is good, yes, if you have permission.
In the context of creative works, at least, it is always good, regardless of permission, except when it is self-defeating.
This could only happen if they presented you with a contract at the point of sale. EULA after the fact doesn't cut it.
It's more complicated than that. Take a look at ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir., 1996) and Klocek v. Gateway, Inc., 104 F. Supp. 2d 1332 (D. Kan. 2000), which probably most clearly set forth the two sides of the EULA argument. But both sides do agree that terms are capable of being set after money changes hands for goods; the overall transaction doesn't have to begin and end at a cash register.
What America needs are some standardized, common-sense "don't copy this" rules that basically say "treat this like a book, only 1 installed use at a time, and don't share the media or copies of the media with people outside your household/family/business" or something similar that fits in 2 or 3 lines of normal-sized type.
We've more or less got this in US copyright law already. Owners of a copy of a computer program can make such copies or adaptations as are necessary to run it (e.g. installing it) and can make backup copies. If they sell or otherwise dispose of the original copy, they can't keep backups.
But this only applies to copies that are outright sold or given away; licensing is an attempt to avoid such transfers to customers, so really the only people making things complicated are the software publishers employing EULAs. There are some that don't, though. E.g. most GPLed software seems to be given away or sold, so the law applies normally, as the GPL doesn't deal with mere use of software.
Warranty disclaimers are likewise quite easy to handle, and plenty of products have them without having to pretend not to have been sold outright.
Really, other than inertia, I can't see for the life of me why the vast majority of EULAed software for ordinary users is licensed at all. Nor has anyone knowledgeable I've talked to been able to come up with anything. It complicates things, and doesn't seem to help anyone. Site licenses, free software licenses, contracts for bespoke development are all sensible enough, but EULAs are just odd.
Well, not really. Here in the US, we had English law when we broke away from England, and we kept it. Think of it as a fork. Pre-revolutionary English law is still good law here, unless it has been locally superseded at some point. Sometimes this results in our still having laws that the English no longer have. For example, the English, IIRC, got rid of the Rule Against Perpetuities, while a good number of US states still have it. And because of our similar legal traditions, even post-Revolutionary cases are sometimes cited, or at least taught, because they're the best illustrations of a particular shared principle. For example, everyone reads Hadley v. Baxendale in school, even though it's a mid-19th century English case.
Still, though, as it's been over 200 years since the fork, we've accumulated enough legal matter of our own that we aren't constantly paging through the Year Books or something.
I do think that pretty much all of the other countries that follow English common law have much more fun court dress than we do though. The best we've got is that a handful of officials will make their court appearances in morning dress. This can be a little odd when the official in question is a woman, I admit.
Well that is a ridiculous thing to say. Marriage is marriage; it's a human institution, it seems to have been around through all our history and probably beyond, and though it may differ here and there, no one has any trouble recognizing it in other cultures.
You're trying to redefine the entire, expansive concept to just what is currently on the books. You only want those marriages recognized as presently are, and so you narrow your view so that those are the only ones you are willing to consider in the first place! It's idiotic. For example, it is currently snowing here. If I were asked to describe the weather for where I live, I'd say that it was somewhat hot in the summer, cold in the winter, mild in spring and fall, with no season being particularly dry or wet. But apparently you, with your self-imposed blinkers on, would only take into account the weather you could see out the window right now, and you'd say that it snows all year long, and never does anything else.
There is a fundamental right for any two consenting adults who wish to marry to do so?
No, there is a fundamental right for any person to marry any other. That right is subject to certain limitations, but the limitations have to be for sufficiently compelling purposes, actually accomplish those purposes, and not cause undue harm. A requirement of consent amongst the partners is one such limitation, and it appears to be well-founded. A requirement that the partners be of opposite genders is another such limitation, but it appears to lack any sort of foundation at all; there's no good reason for it, it doesn't accomplish anything, and it causes a lot of harm. The old requirement (which had a long history dating back centuries, so I would be unsurprised to discover you supported it) that the partners be of the same race, was ultimately abolished in part on the grounds that had no good reason to exist, and caused a lot of harm.
I think you'd be sorely pressed to find any claim for such a right in the 18th, 19th and most of the 20th centuries.
Ah, so now you're saying that marriage is and can only ever be that which it was between, say, 1700 and 1967? That's truly bizarre. Especially since you're unavoidably supporting the idea that the state can prohibit interracial marriages, since, after all, the rationale used to abolish that ban was the same.
Race of the partners is not an essential element of the definition of marriage.
Other than that marriage is a union of multiple people as spouses, there really is no "essential element."
Marriage has been around since time immemorial, but in different times and cultures, it has been quite different. In some cultures, it was okay to marry your sibling, in other cultures it was considered incestuous and illegal to marry someone who was only related to you via someone else's marriage (e.g. if Alice married Bob, Alice's sister Carol could not marry Bob's brother Dave; likewise, if Bob died, Alice couldn't marry Dave either). Marriageable ages have been all over the map, as have what social castes you're allowed to find a spouse in. Marriages of three or more people are known in some parts of the world, but in some cases people can't marry one another because they're of the wrong religion. Or worse, marriages might not be recognized merely because both spouses aren't of the right religion. In about half the US states, it's illegal to marry a first cousin, but in the other half, it is legal (and such marriages are recognized even where they couldn't be performed).
In the US, it doesn't matter what religions think. If a particular church wants to recognize some marriages and not recognize others, that's fine; it just has no legal weight.
The law, however, is founded on principles of individual rights, not historical custom or religious belief. Prohibitions against interracial marriage predate our country, but the mere fact that they were traditional didn't matter one iota in the end. Doing a stupid, bigoted thing for a long time doesn't validate it; it just reveals that there have been a lot of stupid, bigoted people. Calling upon that history is just trying to justify jumping off a bridge because all the other kids are doing it too.
The law says that there is a fundamental right to marry. The law says that fundamental rights should not be infringed, barring a sufficiently compelling reason, where the infringement is necessary in light of that reason, and where the infringement doesn't impair any more rights than necessary.
In the case of the existing prohibition against marrying without consent, we have those things, and the prohibition can stand. In the case of existing prohibition against marrying someone of the same gender, there's simply no good reason, no way the prohibition can effectuate it, and no way to avoid causing undue harm. I dare you to show otherwise.
Once one starts this redefinition, how does one argue that marriage must be confined to just two partners?
First, it's not a redefinition. No one has any problem understanding the idea of a group marriage, and such marriages are not just known in the present day, but across the world, and through history. There are group marriages in the Bible. So don't start with your 'redefinition' crap.
The last Supreme Court opinion on this issue was Reynolds v. US, back in the 19th century. It is one of their most infamous, odious opinions, in the company of Plessy, Dred Scott, Bowers, and others. The gist of it was that group marriages were inherently uncivilized and despotic.
So sure, if someone wants to raise the issue, why the hell shouldn't we address it? If there is a good reason to prohibit it, what is it? The best I can think of is that it would put a burden on the legislature to restructure family and inheritance law. But administrative convenience is clearly no justification for infringing on a fundamental right. Lacking a good reason to oppose it -- and ickyness is not a good reason -- what is the harm in allowing it?
Especially since you cannot prohibit people from cohabitating in the same manner, if they're so inclined. Marriage, from a legal perspective, deals with recognizing the union, and granting various perks (e.g. spousal privilege in evidence law). I doubt that you have a moral opposition with granting group spouses a tax break, and you can't prevent the thing you might dis
Actually, this is not a "separate but equal" issue. Gays currently have the same and equal right as everyone else to marry someone of the opposite sex. It is not government's fault that they are unable to avail themselves of that right.
That's a facile and discredited argument. Back in the 60's, Virginia argued that whites and blacks each had the same right to only marry people of their own race, and that therefore their prohibition on interracial marriage wasn't discriminatory. The Supreme Court made short work of that load of crap.
The issue here is that there is a fundamental right to marry, which ought only to be restricted where that restriction is for a sufficiently important purpose, and where the means of the restriction accomplish that purpose, but do not cause any unnecessary burden on people unrelated to that purpose.
So, for example, there's a good reason to not permit marriages where one or both spouses don't consent to the marriage. Requiring consent would accomplish this, and wouldn't burden anyone unduly. Thus, consent is a restriction of marriage which is valid. And incidentally, because we consider minors unable to consent, that's where the age requirement comes from. Ditto why you can't marry an animal, but could, presumably, marry a sapient alien (Lacking real aliens, fictional examples include Superman marrying Lois Lane, or Mr. Spock's parents).
What good reason is there to require that spouses be of opposite genders? We know it cannot involve procreation, since the restriction doesn't impair a sterile opposite gender couple from marrying, etc. We know it cannot involve child rearing, since opposite gender childless couples, couples with no minor children, and unfit parents are free to marry, and since same sex couples who are good parents would be prevented from marrying despite ability. We know it's not because homosexuality is illegal, because it is protected by the Constitution.
Frankly, I'm at a loss to see what good reason we have to prohibit it, where that reason would be advanced by the prohibition, and would not cause an undue burden on others. Got any suggestions?
The Northerners wanted to count slaves as whole people, whereas the Southerners refused to acknowledge blacks as being human.
No, it was the other way around. Remember, the fight in the 3/5 Compromise wasn't about freeing or enfranchising them, it was about allocating seats in the House of Representatives. If slaves were not counted, the South would have a low population, and be dominated by the North in the House. If counted fully, the South would have a huge population, and dominate the North in the House. Each side preferred to not be dominated, thus the North was against counting them, and the South for. As with the composition of the legislative branch, a compromise between the two sides was reached. Even so, the South wound up being very powerful prior to the Civil War, thanks to this.
So it should cost a no name author thousands of dollars over the course of the copyright, even with a modest fee, to retain the hope of both getting published and getting payed for it?
Probably not. Currently, it costs $35 to register a copyright, so even if there were yearly renewals over a maximum 25 year period (one initial registration, plus 24 renewals), that's still under a thousand dollars.
Anyway, remember, copyright is an economic incentive, but not a guarantee that the author will make money. A work will be valuable or not, depending on the public, with some being flops, and others hits. In almost all cases, it will be clear which a work is quite soon after publication. If the work is a hit, it's no trouble to renew it. If the work is a flop, the author may as well cut his losses and try again from scratch.
The point of the fees is to move works into the public domain faster, which yields a public benefit. Works where the author doesn't expect to make money (this counts for the vast majority of works) won't be worth the fees, so won't get copyrighted, e.g. a typical Slashdot post. This moves most works into the public domain immediately.
Works where the author wrongly thinks he'll make money, but which turn out to be flops will get registered but not renewed, so will enter the public domain much more quickly than they would if the term was quite long. Works which are moderately valuable, but where the value declines over time (Of works with any value, most works only have value for a short time after publication, anywhere from hours to a couple years) will get renewed initially, but eventually the renewals will taper off due to diminishing returns on the investment.
Only a handful of works will have significant value over the full term, and it will be easy to renew those, and it will be trivial to afford to do so.
After all, it's an economic incentive; it is entirely appropriate to expect authors to treat copyrights in a hard-nosed businesslike fashion. They aren't children, they aren't idiots, they have as much experience filling out simple forms as anyone else. It's not a significant burden, but it is just enough to avoid absolutely everything from automatically being copyrighted for as long as possible, even when that doesn't make sense.
28+28 was fine
True, most works were not renewed, and that helped. However, that doesn't mean that 28+28 was actually better than 14+14+14+14 or some other arrangement of term length and number of renewals. The question is how can we encourage the greatest amount of creation and publication of creative works for the least copyright, measured in both the breadth of protection and duration. It doesn't scale linearly -- going from 0 to 1 year has a far greater effect on authors than going from 1 million years to 1 million and one. Treating all types of works the same (which we probably ought not to do) I've generally seen figures in the neighborhood of 15 years. This suggests that a single 28 year term, with another 28 year renewal is extremely overlong.
And anyway, the terms ought to be set according to what works best, and not merely because historically it used to be 28+28, and before that 28+14, and before that 14+14, and that was set because it followed the 14 year patent term, and that was set because it had something to do with how Renaissance England guilds set apprenticeship and journeyman periods. As much as I appreciate the people who call for a return of the 14+14 term, they could stand to think it through a little further.
It is an asset of some sort. If copyright entered the public domain purely on merit that the owner is dead, you would have to also release his other properties freely to the public.
That's not the basis of it, though. The copyright has a limited duration. It used to be 14 years, with the option to be renewed for another 14 years. Then 28+14; then 28+28. And then it was life+50.
A life term is just another span of time, after all. Of course, the duration ought to be whatever, in combination with the breadth of the grant of rights, best serves the public interest. This is probably best accomplished by not automatically granting copyrights, instead letting authors who want them step forward to get them (thus allowing many works to instantly enter the public domain because the authors don't care), and by having short terms with multiple renewals, so that works whose authors at some point stop caring about copyright, can enter the public domain sooner than later. Term lengths might vary depending on the kind of work; a book probably gets more use out of a long copyright than a piece of software or a newspaper does.
On the whole, though, a term of 25 years maximum (i.e. 1-2 year terms, renewed periodically to get to the 25 year total) is probably more than enough for anything. After all, the point of copyright is to encourage authors to create and publish works, which are minimally protected for as short a time as possible. If an author is willing to create a work for a 25 year copyright, it is foolish, and a waste of public resources, to grant a longer copyright. It's just like finding someone to paint your house for $1,000, and then insisting that they accept $10,000 instead.
But the law clearly has no interest in the act of copying
Well, that's not the case in the US. All copying of copyrighted works is prohibited without either permission from the copyright holder or an exception in the law. Format and space shifting are no exceptions and are prima facie infringing. They're only lawful in cases of fair use, which is a case-by-case issue. Under some circumstances that would be legal but not under others. In fact, those are actually pretty tricky. While we're doing a bit better than the UK in some respects, I suppose, our laws aren't so dissimilar as you might suppose.
I was not aware that you are allowed to fix your screw ups like this.
You should see 17 USC 104A.
Despite that, there is something inherently wrong with EMI et al releasing works free to the public in an immensely easy-to-copy form, with no license or copyright notification and then expecting the law to support them in trying to control further distribution.
Well, there may be a copyright notice embedded in the metadata of the file; I'd hope so, at least. And as already noted, there has to be at least an implied license to permit downloading, or else no one could lawfully download the track to begin with. Typical/. posts don't bear an express license, but the mere fact of posting here causes the poster to implicitly grant everyone a license to download the posts in order to be able to read them. Whether further distribution is lawful or not will depend pretty much entirely on the terms of the implied license.
That is to say that in view of the RIAAs litigation war on consumers, if a music work is released this way, it is fair to assume it to be free of copyright issues. Further, it is fair to say that a consumer would have a right to expect that such a work is free of copyright infringement issues and they can redistribute as they please.
That's no good, really. Currently, it doesn't matter whether or not a work appears to be copyrighted. If it is copyrighted, even if you in good faith and after reasonable investigation conclude otherwise, it doesn't get you off the hook for infringement, a strict liability offense.
Yes, your honor, I left my two new $100 bills on that park bench in the NE corner of city park, and when I came back they were gone. Then two hours later in a restaurant, the defendant was overheard telling how he found $200. He stole my money!!!! The sound of a gavel banging is heard as the judge has the man thrown out of the courtroom.
Ah, well, actually, there is not really a finders-keepers rule. If the plaintiff could prove that the money the defendant found was the lost money, then the plaintiff could demand it back. The proof is the hard part, but it is possible. When you find lost, but not abandoned, property, then while you can get rights to it, your rights are superior to everyone else, but inferior to the rightful owner, who you are obligated to return it to, if he ever shows up. There's actually plenty of cases about people finding lost money and the various arguments over it. OTOH, it's not stealing, if it really was lost; to fail to return it would be stealing, though.
IANAL, but IMO if the law generally holds these examples as true and useful, then copyright is being used wrongly in many cases. I believe this is one of them.
Well, this is just a generic deep linking case, AFAICT. Instead of a news article, the content in question is a sound recording, but that makes no difference. The first sale thing is just an interesting side-effect.
You also run into the issue that if I only license the music and my copy is damaged or lost, I then have the right to demand a replacement so that I can exercise my license.
Well, no. The terms of a license can be anything under the sun. A right to guaranteed access to any, or to a particular copy, of a work is a term that might be present, but certainly doesn't have to be. A license is a permission, basically a promise of the licensor not to sue the licensee for the specified things the latter is doing that are normally unlawful. It doesn't oblige the licensor any more than that, unless it says it does.
For example, let's say that I give you an easement to go across my land when, due to flooding, your normal way off your land is impassable. That doesn't mean you have the right to insist that I divert a lot of water into your property so that it floods and you can make use of the easement. It's only a right you can use when other circumstances come together. The analogy isn't perfect, but hopefully clear enough.
A cheap copyright license might merely be permission to do something. Like upgrading a site license from 10 seats to 100 -- all you really need is a serial number to satisfy the installer, not yet another CD identical to the CD you've already got.
A more thorough license might include the right to access a particular copy -- like the CD included with the package -- but not to access any other copies.
The best license -- and negotiated licenses will often include these sorts of terms -- can get you access to any copy the licensor can access, in particular master copies that most people normally don't get to use, if quality is relevant to the project.
All this having been said, CDs aren't ordinarily licensed in the retail environment, because what occurs when you get one is quite clearly a sale. There aren't even licensing terms, generally. "For private use only" isn't a licensing term, it's a reminder that copyright covers public performance, but not private performance. Private listening can't be licensed, because the copyright holder doesn't have a right to prevent people from doing it, which would be the foundation of granting a right to let people do what they otherwise may not.
This is exactly right..... if it is published, it is "in" the public domain. At this point, the auther or copyright holder no longer has right over distribution. period.
Whoa there, Tex.
The 'public domain' is a term of art, which here basically means that a work is not copyrighted. Since copyrights are not absolute rights over a work, but are instead more limited, one could say that a copyrighted book is in the public domain with regard to the right to read it -- since reading is not a right governed by copyright -- but this wouldn't be the same as saying the work as a whole is in the public domain.
Under the current law, publishing a work does not place it in the public domain overall. Further, the copyright holder does have the exclusive right of distribution. There are exceptions to that right, such as first sale, but it's quite wrong to say that the copyright holder can't control any aspect of the distribution of a work merely because it is published.
It was put in the public domain without licensing, and is therefor public domain.
No, it was put on the Internet. There's no indication that it is in the public domain, i.e. that all the copyright holders (and I assure you, the record company is not the only one) have given up their copyrights willingly, or have lost them through some operation of law.
This being the case, downloading the music without a license would be infringing. So just to download it, there has to be at least an implied license -- implied from the conduct of the record company in putting it on the net in the fashion they did -- to make new copies (since that is an unavoidable step in downloading anything). What limits, if any, will be read into that implied license are unclear, but important to know.
No "license" that you don't actually sign can restrict your rights under copyright.
Why wouldn't it? What's so magical about a signature?
If you don't have a right to download a copyrighted work and thus make a new copy of it (an infringing act, barring permission, or an exception in the law), then in order to be granted that right, you might have to shoulder some obligations, such as not exercising your right to engage in first sale with regard to the lawfully made copies of that work you've made pursuant to the grant.
The GPL is quite similar: it grants a right you don't normally have -- making copies, making derivatives, distribution -- but imposes an obligation to distribute source if you accept the grant and engage in those certain behaviors.
One obligation for the licensee is much the same as another. It doesn't matter whether it deals with first sale or not.
When an MP3 is offered for download (either at a price or for free), it's obvious that a copy of the file has to be stored on something on the downloader's end in order for it to be useful. That "something" may be RAM, a hard disk, a flash drive, or a recordable CD, and I can't see anything in copyright law that would restrict the downloader's choice of the medium, based on various "fitness for purpose" consumer protection laws. Really, would it make sense to be allowed to download the MP3 to a flash-based iPod, but not a hard-disk iPod?
If the copyright holder makes the legality of the download contingent on using one particular medium and not another, it's his choice. He doesn't have to permit the download at all. If he decides to only permit downloading by red-haired people on alternate Thursdays, then he has every right to do so. It might be silly, but there's nothing to override his choice.
So, the question becomes: are all digital sales protected by the first-sale doctrine, even if the purchaser must provide the media for "fixing" themselves?
They're protected by the doctrine unless the downloader has willingly promised not to exercise it. First sale isn't an inalienable right. Even when the Supreme Court first recognized it in Bobbs-Merril, they acknowledged that it could be contracted away. The right is only there in the absence of an agreement that it's not; that is, it's the default, not absolute.
There is of course a lot of room to argue about how we should regulate the right to contract, how we might reform the UCC, how we might reform copyright law, etc. to deal with relatively recent developments like nearly ubiquitous adhesive licensing and the way that computers must copy things in order to use them. But I'm talking about what the law currently is, not what we'd like it to be. After all, I figure that education as to the sorry state of these laws is our best chance to get meaningful reform. Overly optimistic misconceptions are no good toward that aim.
A question, and I'm asking because I honestly don't know, has it been clearly established under US law that distribute and delete equals transfer?
AFAIK it has not, and it likely wouldn't be if squarely addressed. Instead, it would be infringing as a new copy was made (the law doesn't care if an older copy was then destroyed; it's the act of copying that matters, not the number of copies left at the end of the day), and worse still, there was also distribution (or more accurately, performance or display) involved as well.
"I own the copyright to that music, I grant you a license to listen to it and do anything with it you wish as long as you don't give it away or try to sell it". Pretty standard license and actually I think encapsulated in the copyright law itself.
Hm, sounds problematic to me. Copyright doesn't include an exclusive right to listen to music. The copyright holder can control making copies of the music, making derivative works based on the music, performing the music, broadcasting the music, etc. but not actually listening to it. That's free.
The closest the copyright holder could get would be to not let anyone else have copies of the music, and to require anyone who wanted to listen to have to pay a fee to do so. This would basically be providing a venue -- the same thing that a concert hall does -- and would really have nothing to do with copyright. Charging admission to venues works just as well with public domain materials (e.g. paying money to go see an uncopyrighted movie in a theater).
The other stuff though; the 'do anything with it you wish' is far more interesting. That would permit people to, say, make derivative works based on the music (e.g. a music video), and with the paltry limitations, to publicly perform it (e.g. on MTV) or rent out copies of it.
The copyright law also says that you must be granted rights explicitly rather than assuming them.
No, it says no such thing. In fact, copyright licenses are probably more often implied than express. For example, your post to which I am responding is (probably) copyrighted. You didn't expressly give me permission to download it (as I necessarily must simply in order to read it), but were you to take me to court over it, you'd surely lose, because your conduct in posting it to a public forum such as this granted me that right.
The law does say that exclusive licenses have to be written and signed by the licensor, though, so perhaps that's what you were thinking of.
If that also applies to advertising my goods then the location of the ones that I am giving away for free for certain purposes (usually promotional to a specific group) is mine to distribute as well.
Why would the location be copyrightable at all? Sounds like an uncopyrightable fact to me.
I don't grant you the right to figure out how to make the cars real and give them away, only I have the right to do that.
Well, you'd have to have that right. Certainly copyright only covers a few specific rights with regard to a work, leaving the rest to the public domain even during the copyright term (e.g. while not everyone has the right to print up new copies of a book, everyone has the right to read extant copies at will). I think the analogy does break down here -- patents require you to tell the world how to do it, if that's what the subject of the patent is. Trade secrets don't protect against reverse engineering, so anyone is free to apply their own brainpower to breaking your control over the secret by independently discovering it. And while we're all well aware of how perverted copyrights have become, traditionally they mainly tried to protect published works, not secret ones. (Of course, there is good reason to protect manuscripts that are intended to be published in the near future, lest pirates cut the author off at the pass, as it were, but it is important to keep this from being abused; if an author has no intent to publish, or is being ridiculously slow, then, setting aside whatever right of privacy implications might arise, copyright policy would favor the pirate; creative works are only good for the public when the public can get at them)
And no simply because it is available on a particular URL for download it is NOT free of licensing nor do you even have permission to download it.
True. Merely because a work can be accessed at a particular URL doesn't mean that everyone has the right to do so where it would infringe to do so (and since downloading is necessarily copying, permission or an
The First-sale doctrine applies only to tangible property. It does not apply to an mp3 you downloaded.
Well, that's not entirely correct.
The reason why downloading can be infringement is because when you download a work, you necessarily fix the intangible work in some tangible medium, e.g. RAM, or a hard drive, as you do it. Fixing a work in a tangible medium constitutes reproduction under the copyright law, and reproduction is one of the exclusive rights of the copyright holder.
However, first sale applies to all lawfully made copies (a copy is a tangible medium that the work is fixed in; when you download something to your hard drive, the hard drive becomes a copy of that thing, along with whatever else the hard drive is), regardless of who made them. Any person who owns a lawfully made copy may, for example, sell that copy, without permission from the copyright holder. The statute is at 17 USC 109 if you'd like to look at it.
So if you were given permission by the copyright holder to download some music and fix it in any medium you wished, you could just start burning CDs and selling them, and it would fall under first sale. I suppose you could also just give away your hard drive or something, but generally people don't like to do that. However, it's more common that the copyright holder permits you to download the music only if you agree not to distribute copies of that music to other people. In that circumstance, so long as you don't sell, or give away copies, the copies you make are lawfully made. If you do sell them, then they're no longer lawfully made (you've exceeded the scope of the permission to download them in the first place) and so first sale doesn't apply.
I'm sure that folks here can see some parallels to the GPL: you can copy, distribute, and modify GPLed software as you like, so long as you obey the instructions of the GPL to make source available; fail to do that, and you can't have lawfully done those other things.
here is a hypothetical: I am an artist. I spent most of my adult life poor, my family is also poor because of this. Right around the age of 50 I make a hit. It is going to sell and I am going to get paid like a rockstar. I tragically die. Should my family not get the money from my hardwork?
Sure. This is a good argument for flat copyright terms, instead of terms based on the life of an author. Let's have copyright terms that last for, say, 5 years, renewable in similarly short increments, for as long as, say, 25 years. (Most works make most of the money they'll ever be worth within no more than 15 years, and often very much less time) Then it doesn't matter when you die; the term lasts as long as it lasts. This is traditionally how copyright terms in the US have worked, and it's worked pretty well.
Or, what if I spent years working on something but it takes it a while to come to fruition. So I may not make a million bucks in a year, but it may take time - a slow trickle of funds. A few thousand dollars every year. Why should I not enjoy that money I worked for.
Are you saying that the work takes a long time to finish, but makes money upon publication, or that the work is published and takes a long time to make money after publication?
In the first case, who cares? Copyrights should last a long time for unpublished works, to deter people pirating manuscripts, but not so long that authors have an incentive to sit on a manuscript; copyright is interested in getting works published and ultimately in the public domain, not merely protecting them merely to make a do-nothing author happy.
In the second case, I have no problem with authors seeking long copyright terms, so long as it's not automatic; the author should have to seek a copyright in the first case, and deliberately renew it frequently, to indicate continuing interest. Ultimately, though, the term will need to expire. If the author couldn't turn a profit after a couple of decades, then the odds are that he never will. Exceptions are rare enough so as to not be worthwhile in setting policy, for the same reason that people who miraculously survive in a tornado out in the open are not extolled as reasons to not take shelter in a proper basement.
There is no monopoly on games, music and movies.
The monopoly is on a specific game, or piece of music, or movie. The reason piracy appeals, is because one copy is as good as another, at least so far as copyright goes. I could go to a bookstore and buy any of a dozen different copies of Shakespeare, from different publishers; they're interchangeable commodities. A copyright is a monopoly on a commodity, i.e. that specific work, identical copies of which could otherwise be made by anyone.
The content is theres not yours.
Nonsense. We have a right of free speech, and this encompasses the right to repeat the speech of others; that's why the state can't prevent me from reciting Shakespeare, though I didn't write it.
The government has no power not ultimately granted to it by the people. Copyright is the people willingly giving up a little bit of our free speech. No one would ever do this just because; we expect to get a greater benefit out of it than it costs us. In particular we want to encourage authors to create works, to publish those works, and for those works to be as unprotected as possible, and to enter the public domain as fast as possible. We want the greatest public benefit for the least cost to ourselves. It's great if authors benefit from it as well, but only to the minimal extent necessary to get them to create and publish. Why would it be in the public's interest to give them more?
But the current copyright laws are probably not providing the greatest possible public benefit. And increasing them probably wouldn't increase the public benefit. So it seems likely that the best way to serve the public interest -- the only interest that counts -- is to reduce the length and breadth of copyright.
Well, a lot of that argument depends on whether you feel that intellectual property can and should be left as a legacy for children and grandchildren. I'm of the opinion that it should, but then again, I also have a stake in that.
If I may ask, why?
If it is to provide for them, let's remember that the vast majority of copyrighted works have no copyright-related economic value. Of the few works which do, the vast majority enjoy the vast majority of their copyright-related economic value within a very short time of publication in a given medium. For example, a movie makes most of its box-office money in the first weekend it's released, and for each week thereafter, ticket sales drop. Eventually it does poorly enough that it is no longer shown in the theater. The cycle repeats with discount theaters, pay-per-view, sales of copies (to viewers and rental stores), subscription cable licensing, basic cable licensing, broadcast tv licensing, etc. Within a few years 90% or more of the money that will ever be made from the copyright on the movie has been made. Only dregs remain, which can take far longer to wring out. Only a minuscule number of works have significant lasting value.
The odds of making that sort of work are on par with winning the lottery.
Since most works are worthless, and most works which have worth are close to worthless within a few years, leaving those works as a "legacy" to one's children and grandchildren would be pointless at best, or a sad joke at their expense at worst. Gambling on the works being of the rare sort that are of lasting significant worth is no different than leaving them a big pile of lottery tickets in your will. It's not a good justification for setting copyright policy, and they're not responsible people to listen to.
Instead, if people want to leave something to help their survivors or descendants, they should carefully invest the money they made initially. They should make sure to get life insurance. They should be responsible with their money. And they should support social welfare programs so that even if they die penniless, the others won't be cast out onto the streets. Better still, instead of long copyright terms, which protect only a teeny tiny number of authors (or more likely, publishers instead), this is all good advice for everyone, not just authors.
Further, at a minimum, even if you do think that excessively long copyright terms ought to be available for the fraction of a fraction of a fraction of a percent of works that will be worth the trouble, then let's at least recognize that those long terms are not needed for all works, or even most works. Further, let's remember that it is the copyright holder who has a vested interest in keeping the copyright, and who is best-informed as to how much money he is making from exploiting the copyright. Therefore, isn't it sensible to require authors to register in order to get copyrights initially (so that the majority of works, which are never of any copyright-related value, can immediately pass into the public domain, since the copyrights are worthless), and let those copyright terms be quite short but renewable, so that every few years, the copyright holder can re-assess how much the rights are worth, and whether there is any point to renewing them. The registration and renewals shouldn't be free (since then they'd always be renewed without any honest assessment of future value), but should cost a token amount so that the copyright holder has to actually think about it, and won't want to waste money on a work whose value has gone.
In fact, having the work in copyright longer can improve the work's chances of survival, as it increases the length of time that the work has a champion.
Actually, you're talking about popularity. Survival of the work is promoted by works being in the public domain; for example, most works we have from antiquity are not original copies, but copies of copies, because the central libraries didn't survive. Copies that were passed around, and wh
Also I'd like to debate that music and movies qualify as "useful arts" and therefore do not warrant protection under copyright.
Well, that's actually a fairly common misconception. When the Constitution was written in the mid-18th century, the 'useful Arts' meant applied technology, and 'Science' meant knowledge, generally. Thus, the useful arts are the subject of patents, not of copyrights.
This is clear if you look at the construction of the clause, which always goes copyright, then patents: The Congress shall have power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
There are some other remnants of that meaning of art: Patents are concerned with state of the art technology. But a patent can't be issued if the invention is already disclosed in prior art. And the patent has to be written so that it can be understood by a person having ordinary skill in the art.
So music and movies don't have to be useful, they just have to contribute to the corpus of human knowledge, which is very difficult not to do.
When did that right become transferable?
It has always been transferable, all the way back to the first real copyright law, the British Statute of Anne, in 1710, and in the first US copyright law, the 1790 Copyright Act. Remember, copyrights are not directly valuable to authors. They're basically publishing monopolies. The author makes money by selling the right, or licensing the right, to a publisher. And generally, publishers would prefer to buy rights, rather than merely license them. So they pay more for the former than the latter, and often enough, won't even bother with the latter. Since there are plenty of authors hoping to get published, the market favors the publisher. Authors can always self-publish, but they may find that unappealing.
The system is flawed, and I don't think our laws reflect the true sentiment in the Constitution.
I agree, but I think the real problem is that Congress is more attentive to the wealthy publishing lobbies (e.g. MPAA, RIAA), rather than to the public good, which is what copyright is supposed to promote. Still, this is a general problem of political misfeasance and malfeasance, and not at all limited to copyright.
Of course, it's impossible to reconcile that with freedom of speech (which encompasses the verbatim repetition of others' speech) so perhaps it's not really a human right after all. Certainly it's no natural right, like free speech is. And it's a negative right (i.e. copyrights aren't a right to do anything -- that's free speech -- but instead is a right to prohibit other people from doing things), which makes it even more dubious to claim it's a human right.
Frankly, while I have no problem with the idea of copyright as a utilitarian system meant to benefit the public, or with copyright systems that actually accomplish that, the notion that it's a human right is obvious bullshit.
The problem with your argument is that it is about as sensible to give authors long copyrights in lieu of pensions as it would be to give them lottery tickets. Most copyrighted works have no copyright-related economic value. Of the small number that do have value, most only have value within a short time of publication in a given medium (anywhere from hours to years, usually 12-18 months) before they too lose nearly all of their copyright-related value. Only a teeny tiny fraction of works have long-lasting economic value, and in almost all cases where that occurs, the work is quite valuable from the get-go.
Consider a movie: it makes a lot the first weekend it comes out in theaters, but receipts go down each week until it is finally replaced by something new. In time, it goes to pay-per-view, home video, subscription cable tv, broadcast tv, etc. Each time, it makes most of the money it will ever make up front, with diminishing returns thereafter. Eventually, there's no more new media to publish it in, or at least not where it's worthwhile (people who bought a movie on DVD don't seem enthusiastic about buying it again on Bluray), and it falls entirely out of print.
So copyrights are useless as a substitute for pensions; most authors will wind up with no new money coming in in their old age. The handful that do, aside from being on par with lottery winners for luck, have probably already made a lot of money, and thus have little need for more (unless they've squandered it, in which case I have little sympathy).
If you actually cared about authors' old age funds, not to mention the widows and orphans that are oft-invoked, you would not dare to suggest that copyright extensions are a solution, when they clearly are not. The only people that are helped are the holders of the teeny tiny handful of copyrights that have long term value, and frankly, those people, with few exceptions, have been raking in enough cash since the work was published that we don't really need to concern ourselves with how they'll get by in their dotage; they're already set, or at least have had every opportunity to be.
If you're worried about elderly authors living in poverty, then an infinitely better idea would be to encourage authors to save and invest wisely in their youth and middle age, to not make bad deals, to get insured to provide for themselves or their family in case of calamity, and for the government to provide social welfare for anyone in need of it, whether they are an author or not. This is much fairer, since everyone should do this, and thus the benefit is to all of society, and not a tiny special interest, and further, it actually can succeed, where your suggestions are doomed to fail at achieving your stated goal from the very start. I suppose you might be lying, and invoking the image of an old, poor author dying in a gutter in order to further stuff the pockets of the already-rich (or once-rich wastrels), but then that would really make me upset.
What lame-brain dummy would think that either:-( or;-) are trademarkable symbols??? They both originated circa 1980 and therefore are public domain.
I'm not sure what that has to do with anything. Perhaps Russian trademark law is different, but in the US, at least, it doesn't matter who creates the mark, or when it was created. What basically makes a mark protectable is that it is being used to identify goods or services so marked as originating from a particular source.
The word 'apple' has been around for hundreds of years, and wasn't coined by the two Steves but it is a trademark for computers. The name 'Levi' has been around for thousands of years, but it is a trademark for jeans.
Assuming that someone makes:-) brand something-or-others (or offers services under the:-) brand) and people recognize that the smiley is actually a mark in that context, meaning that so-marked goods or services come from a particular provider, then sure, it can work.
But it wouldn't affect other uses of it, like people talking about emotional states, any more than the APPLE mark for computers prevents people from using the word freely with regard to fruit.
Slashdot Mirror
If you have too much sharing, then there is no longer a means for sales.
No, that's going too far. People sell copies of public domain works all the time. Go to any decent bookstore, and you'll find copies of Dickens, Hugo, Twain, etc.
Frankly, it's not for you or anyone else to judge how they choose to profit from their creations.
Well, to some extent it is. The people empowered the government to enact copyright laws meant to benefit the people. Copyright doesn't originate from authors, and is not meant to serve their interests, save as a mere means to an end. (Much like how a farmer might give his mule a carrot to encourage it to pull a cart to market, but wouldn't waste a carrot on the mule for no self-serving reason)
Ultimately, we set the rules, and we set them to benefit ourselves. The trouble we've been having lately is that our representatives, who are supposed to be acting in our interests, have been corrupted or confused, and are not only acting as dictated by third parties, they are often acting against the public interest. It's a problem that demands our attention.
I have no problem with authors profiting from their work. But if they wish to profit by means of a monopoly that prevents everyone else from using their work as we see fit, then there's a pretty big problem. Why would I ever give an author such power unless I gained more by doing so than I lost? Thus, how they choose to profit from their work becomes a question I, and everyone else, needs to judge, since apparently no one else has our interests in mind.
Thus:
If they want to sell very limited copies for money
If they want to sell very limited copies for money, it's ultimately up to everyone else to decide whether those limits ought to be enforceable, or even respected. You can apply DRM to a copy of Shakespeare, if you like, and I can break it, if I like. If you want a copyright, you'll have to convince me that it leaves me better off to grant you one.
It's not for people to overstep their authority simply because they can do it easily.
It's a factor. Copyright law must serve the public interest in encouraging works to be created and published, with as few restrictions on those works as possible, for the shortest period of time. That is, getting the most bang for our buck. But it also needs to conform to social norms. It's always good for the law to be obeyed not only out of respect for the law, but because people would be apt to engage in that behavior anyway. When law and norms conflict, people tend to follow norms. When people disrespect one law, this can breed disrespect for more; that's dangerous. And since the law is meant to serve the people, the people are usually in the right in these matters. Sometimes it is worth trying to change social norms -- the civil rights era is a good example of this -- but it often isn't -- such as Prohibition. I'd say that copyright is one of those laws where it needs to submit to norms, rather than the other way around. Thus, piracy amongst individuals, not acting for profit, really ought to be made lawful, since virtually everyone seems to do it anyway, while commercial piracy, which most people are opposed to, could remain infringing.
-it's nothing more than simple greed and dishonesty
I fail to see the dishonesty. As for the greed, sure. So what? Copyright is based upon greed. It incentivizes authors to create, by playing on their greed for the money that the temporary monopoly can direct toward them. And it exists because the public has a insatiable greed for more creative works, and for those works to be as unrestricted as possible, as fast as possible, so that they can be acquired for free, and freely used. Don't dis greed.
Borrowing and sharing is good, yes, if you have permission.
In the context of creative works, at least, it is always good, regardless of permission, except when it is self-defeating.
This could only happen if they presented you with a contract at the point of sale. EULA after the fact doesn't cut it.
It's more complicated than that. Take a look at ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir., 1996) and Klocek v. Gateway, Inc., 104 F. Supp. 2d 1332 (D. Kan. 2000), which probably most clearly set forth the two sides of the EULA argument. But both sides do agree that terms are capable of being set after money changes hands for goods; the overall transaction doesn't have to begin and end at a cash register.
What America needs are some standardized, common-sense "don't copy this" rules that basically say "treat this like a book, only 1 installed use at a time, and don't share the media or copies of the media with people outside your household/family/business" or something similar that fits in 2 or 3 lines of normal-sized type.
We've more or less got this in US copyright law already. Owners of a copy of a computer program can make such copies or adaptations as are necessary to run it (e.g. installing it) and can make backup copies. If they sell or otherwise dispose of the original copy, they can't keep backups.
But this only applies to copies that are outright sold or given away; licensing is an attempt to avoid such transfers to customers, so really the only people making things complicated are the software publishers employing EULAs. There are some that don't, though. E.g. most GPLed software seems to be given away or sold, so the law applies normally, as the GPL doesn't deal with mere use of software.
Warranty disclaimers are likewise quite easy to handle, and plenty of products have them without having to pretend not to have been sold outright.
Really, other than inertia, I can't see for the life of me why the vast majority of EULAed software for ordinary users is licensed at all. Nor has anyone knowledgeable I've talked to been able to come up with anything. It complicates things, and doesn't seem to help anyone. Site licenses, free software licenses, contracts for bespoke development are all sensible enough, but EULAs are just odd.
Well, not really. Here in the US, we had English law when we broke away from England, and we kept it. Think of it as a fork. Pre-revolutionary English law is still good law here, unless it has been locally superseded at some point. Sometimes this results in our still having laws that the English no longer have. For example, the English, IIRC, got rid of the Rule Against Perpetuities, while a good number of US states still have it. And because of our similar legal traditions, even post-Revolutionary cases are sometimes cited, or at least taught, because they're the best illustrations of a particular shared principle. For example, everyone reads Hadley v. Baxendale in school, even though it's a mid-19th century English case.
Still, though, as it's been over 200 years since the fork, we've accumulated enough legal matter of our own that we aren't constantly paging through the Year Books or something.
I do think that pretty much all of the other countries that follow English common law have much more fun court dress than we do though. The best we've got is that a handful of officials will make their court appearances in morning dress. This can be a little odd when the official in question is a woman, I admit.
In the context of Western marriage
Well that is a ridiculous thing to say. Marriage is marriage; it's a human institution, it seems to have been around through all our history and probably beyond, and though it may differ here and there, no one has any trouble recognizing it in other cultures.
You're trying to redefine the entire, expansive concept to just what is currently on the books. You only want those marriages recognized as presently are, and so you narrow your view so that those are the only ones you are willing to consider in the first place! It's idiotic. For example, it is currently snowing here. If I were asked to describe the weather for where I live, I'd say that it was somewhat hot in the summer, cold in the winter, mild in spring and fall, with no season being particularly dry or wet. But apparently you, with your self-imposed blinkers on, would only take into account the weather you could see out the window right now, and you'd say that it snows all year long, and never does anything else.
There is a fundamental right for any two consenting adults who wish to marry to do so?
No, there is a fundamental right for any person to marry any other. That right is subject to certain limitations, but the limitations have to be for sufficiently compelling purposes, actually accomplish those purposes, and not cause undue harm. A requirement of consent amongst the partners is one such limitation, and it appears to be well-founded. A requirement that the partners be of opposite genders is another such limitation, but it appears to lack any sort of foundation at all; there's no good reason for it, it doesn't accomplish anything, and it causes a lot of harm. The old requirement (which had a long history dating back centuries, so I would be unsurprised to discover you supported it) that the partners be of the same race, was ultimately abolished in part on the grounds that had no good reason to exist, and caused a lot of harm.
I think you'd be sorely pressed to find any claim for such a right in the 18th, 19th and most of the 20th centuries.
Ah, so now you're saying that marriage is and can only ever be that which it was between, say, 1700 and 1967? That's truly bizarre. Especially since you're unavoidably supporting the idea that the state can prohibit interracial marriages, since, after all, the rationale used to abolish that ban was the same.
Race of the partners is not an essential element of the definition of marriage.
Other than that marriage is a union of multiple people as spouses, there really is no "essential element."
Marriage has been around since time immemorial, but in different times and cultures, it has been quite different. In some cultures, it was okay to marry your sibling, in other cultures it was considered incestuous and illegal to marry someone who was only related to you via someone else's marriage (e.g. if Alice married Bob, Alice's sister Carol could not marry Bob's brother Dave; likewise, if Bob died, Alice couldn't marry Dave either). Marriageable ages have been all over the map, as have what social castes you're allowed to find a spouse in. Marriages of three or more people are known in some parts of the world, but in some cases people can't marry one another because they're of the wrong religion. Or worse, marriages might not be recognized merely because both spouses aren't of the right religion. In about half the US states, it's illegal to marry a first cousin, but in the other half, it is legal (and such marriages are recognized even where they couldn't be performed).
In the US, it doesn't matter what religions think. If a particular church wants to recognize some marriages and not recognize others, that's fine; it just has no legal weight.
The law, however, is founded on principles of individual rights, not historical custom or religious belief. Prohibitions against interracial marriage predate our country, but the mere fact that they were traditional didn't matter one iota in the end. Doing a stupid, bigoted thing for a long time doesn't validate it; it just reveals that there have been a lot of stupid, bigoted people. Calling upon that history is just trying to justify jumping off a bridge because all the other kids are doing it too.
The law says that there is a fundamental right to marry. The law says that fundamental rights should not be infringed, barring a sufficiently compelling reason, where the infringement is necessary in light of that reason, and where the infringement doesn't impair any more rights than necessary.
In the case of the existing prohibition against marrying without consent, we have those things, and the prohibition can stand. In the case of existing prohibition against marrying someone of the same gender, there's simply no good reason, no way the prohibition can effectuate it, and no way to avoid causing undue harm. I dare you to show otherwise.
Once one starts this redefinition, how does one argue that marriage must be confined to just two partners?
First, it's not a redefinition. No one has any problem understanding the idea of a group marriage, and such marriages are not just known in the present day, but across the world, and through history. There are group marriages in the Bible. So don't start with your 'redefinition' crap.
The last Supreme Court opinion on this issue was Reynolds v. US, back in the 19th century. It is one of their most infamous, odious opinions, in the company of Plessy, Dred Scott, Bowers, and others. The gist of it was that group marriages were inherently uncivilized and despotic.
So sure, if someone wants to raise the issue, why the hell shouldn't we address it? If there is a good reason to prohibit it, what is it? The best I can think of is that it would put a burden on the legislature to restructure family and inheritance law. But administrative convenience is clearly no justification for infringing on a fundamental right. Lacking a good reason to oppose it -- and ickyness is not a good reason -- what is the harm in allowing it?
Especially since you cannot prohibit people from cohabitating in the same manner, if they're so inclined. Marriage, from a legal perspective, deals with recognizing the union, and granting various perks (e.g. spousal privilege in evidence law). I doubt that you have a moral opposition with granting group spouses a tax break, and you can't prevent the thing you might dis
Actually, this is not a "separate but equal" issue. Gays currently have the same and equal right as everyone else to marry someone of the opposite sex. It is not government's fault that they are unable to avail themselves of that right.
That's a facile and discredited argument. Back in the 60's, Virginia argued that whites and blacks each had the same right to only marry people of their own race, and that therefore their prohibition on interracial marriage wasn't discriminatory. The Supreme Court made short work of that load of crap.
The issue here is that there is a fundamental right to marry, which ought only to be restricted where that restriction is for a sufficiently important purpose, and where the means of the restriction accomplish that purpose, but do not cause any unnecessary burden on people unrelated to that purpose.
So, for example, there's a good reason to not permit marriages where one or both spouses don't consent to the marriage. Requiring consent would accomplish this, and wouldn't burden anyone unduly. Thus, consent is a restriction of marriage which is valid. And incidentally, because we consider minors unable to consent, that's where the age requirement comes from. Ditto why you can't marry an animal, but could, presumably, marry a sapient alien (Lacking real aliens, fictional examples include Superman marrying Lois Lane, or Mr. Spock's parents).
What good reason is there to require that spouses be of opposite genders? We know it cannot involve procreation, since the restriction doesn't impair a sterile opposite gender couple from marrying, etc. We know it cannot involve child rearing, since opposite gender childless couples, couples with no minor children, and unfit parents are free to marry, and since same sex couples who are good parents would be prevented from marrying despite ability. We know it's not because homosexuality is illegal, because it is protected by the Constitution.
Frankly, I'm at a loss to see what good reason we have to prohibit it, where that reason would be advanced by the prohibition, and would not cause an undue burden on others. Got any suggestions?
The Northerners wanted to count slaves as whole people, whereas the Southerners refused to acknowledge blacks as being human.
No, it was the other way around. Remember, the fight in the 3/5 Compromise wasn't about freeing or enfranchising them, it was about allocating seats in the House of Representatives. If slaves were not counted, the South would have a low population, and be dominated by the North in the House. If counted fully, the South would have a huge population, and dominate the North in the House. Each side preferred to not be dominated, thus the North was against counting them, and the South for. As with the composition of the legislative branch, a compromise between the two sides was reached. Even so, the South wound up being very powerful prior to the Civil War, thanks to this.
So it should cost a no name author thousands of dollars over the course of the copyright, even with a modest fee, to retain the hope of both getting published and getting payed for it?
Probably not. Currently, it costs $35 to register a copyright, so even if there were yearly renewals over a maximum 25 year period (one initial registration, plus 24 renewals), that's still under a thousand dollars.
Anyway, remember, copyright is an economic incentive, but not a guarantee that the author will make money. A work will be valuable or not, depending on the public, with some being flops, and others hits. In almost all cases, it will be clear which a work is quite soon after publication. If the work is a hit, it's no trouble to renew it. If the work is a flop, the author may as well cut his losses and try again from scratch.
The point of the fees is to move works into the public domain faster, which yields a public benefit. Works where the author doesn't expect to make money (this counts for the vast majority of works) won't be worth the fees, so won't get copyrighted, e.g. a typical Slashdot post. This moves most works into the public domain immediately.
Works where the author wrongly thinks he'll make money, but which turn out to be flops will get registered but not renewed, so will enter the public domain much more quickly than they would if the term was quite long. Works which are moderately valuable, but where the value declines over time (Of works with any value, most works only have value for a short time after publication, anywhere from hours to a couple years) will get renewed initially, but eventually the renewals will taper off due to diminishing returns on the investment.
Only a handful of works will have significant value over the full term, and it will be easy to renew those, and it will be trivial to afford to do so.
After all, it's an economic incentive; it is entirely appropriate to expect authors to treat copyrights in a hard-nosed businesslike fashion. They aren't children, they aren't idiots, they have as much experience filling out simple forms as anyone else. It's not a significant burden, but it is just enough to avoid absolutely everything from automatically being copyrighted for as long as possible, even when that doesn't make sense.
28+28 was fine
True, most works were not renewed, and that helped. However, that doesn't mean that 28+28 was actually better than 14+14+14+14 or some other arrangement of term length and number of renewals. The question is how can we encourage the greatest amount of creation and publication of creative works for the least copyright, measured in both the breadth of protection and duration. It doesn't scale linearly -- going from 0 to 1 year has a far greater effect on authors than going from 1 million years to 1 million and one. Treating all types of works the same (which we probably ought not to do) I've generally seen figures in the neighborhood of 15 years. This suggests that a single 28 year term, with another 28 year renewal is extremely overlong.
And anyway, the terms ought to be set according to what works best, and not merely because historically it used to be 28+28, and before that 28+14, and before that 14+14, and that was set because it followed the 14 year patent term, and that was set because it had something to do with how Renaissance England guilds set apprenticeship and journeyman periods. As much as I appreciate the people who call for a return of the 14+14 term, they could stand to think it through a little further.
It is an asset of some sort. If copyright entered the public domain purely on merit that the owner is dead, you would have to also release his other properties freely to the public.
That's not the basis of it, though. The copyright has a limited duration. It used to be 14 years, with the option to be renewed for another 14 years. Then 28+14; then 28+28. And then it was life+50.
A life term is just another span of time, after all. Of course, the duration ought to be whatever, in combination with the breadth of the grant of rights, best serves the public interest. This is probably best accomplished by not automatically granting copyrights, instead letting authors who want them step forward to get them (thus allowing many works to instantly enter the public domain because the authors don't care), and by having short terms with multiple renewals, so that works whose authors at some point stop caring about copyright, can enter the public domain sooner than later. Term lengths might vary depending on the kind of work; a book probably gets more use out of a long copyright than a piece of software or a newspaper does.
On the whole, though, a term of 25 years maximum (i.e. 1-2 year terms, renewed periodically to get to the 25 year total) is probably more than enough for anything. After all, the point of copyright is to encourage authors to create and publish works, which are minimally protected for as short a time as possible. If an author is willing to create a work for a 25 year copyright, it is foolish, and a waste of public resources, to grant a longer copyright. It's just like finding someone to paint your house for $1,000, and then insisting that they accept $10,000 instead.
But the law clearly has no interest in the act of copying
Well, that's not the case in the US. All copying of copyrighted works is prohibited without either permission from the copyright holder or an exception in the law. Format and space shifting are no exceptions and are prima facie infringing. They're only lawful in cases of fair use, which is a case-by-case issue. Under some circumstances that would be legal but not under others. In fact, those are actually pretty tricky. While we're doing a bit better than the UK in some respects, I suppose, our laws aren't so dissimilar as you might suppose.
I was not aware that you are allowed to fix your screw ups like this.
You should see 17 USC 104A.
Despite that, there is something inherently wrong with EMI et al releasing works free to the public in an immensely easy-to-copy form, with no license or copyright notification and then expecting the law to support them in trying to control further distribution.
Well, there may be a copyright notice embedded in the metadata of the file; I'd hope so, at least. And as already noted, there has to be at least an implied license to permit downloading, or else no one could lawfully download the track to begin with. Typical /. posts don't bear an express license, but the mere fact of posting here causes the poster to implicitly grant everyone a license to download the posts in order to be able to read them. Whether further distribution is lawful or not will depend pretty much entirely on the terms of the implied license.
That is to say that in view of the RIAAs litigation war on consumers, if a music work is released this way, it is fair to assume it to be free of copyright issues. Further, it is fair to say that a consumer would have a right to expect that such a work is free of copyright infringement issues and they can redistribute as they please.
That's no good, really. Currently, it doesn't matter whether or not a work appears to be copyrighted. If it is copyrighted, even if you in good faith and after reasonable investigation conclude otherwise, it doesn't get you off the hook for infringement, a strict liability offense.
Yes, your honor, I left my two new $100 bills on that park bench in the NE corner of city park, and when I came back they were gone. Then two hours later in a restaurant, the defendant was overheard telling how he found $200. He stole my money!!!! The sound of a gavel banging is heard as the judge has the man thrown out of the courtroom.
Ah, well, actually, there is not really a finders-keepers rule. If the plaintiff could prove that the money the defendant found was the lost money, then the plaintiff could demand it back. The proof is the hard part, but it is possible. When you find lost, but not abandoned, property, then while you can get rights to it, your rights are superior to everyone else, but inferior to the rightful owner, who you are obligated to return it to, if he ever shows up. There's actually plenty of cases about people finding lost money and the various arguments over it. OTOH, it's not stealing, if it really was lost; to fail to return it would be stealing, though.
IANAL, but IMO if the law generally holds these examples as true and useful, then copyright is being used wrongly in many cases. I believe this is one of them.
Well, this is just a generic deep linking case, AFAICT. Instead of a news article, the content in question is a sound recording, but that makes no difference. The first sale thing is just an interesting side-effect.
You also run into the issue that if I only license the music and my copy is damaged or lost, I then have the right to demand a replacement so that I can exercise my license.
Well, no. The terms of a license can be anything under the sun. A right to guaranteed access to any, or to a particular copy, of a work is a term that might be present, but certainly doesn't have to be. A license is a permission, basically a promise of the licensor not to sue the licensee for the specified things the latter is doing that are normally unlawful. It doesn't oblige the licensor any more than that, unless it says it does.
For example, let's say that I give you an easement to go across my land when, due to flooding, your normal way off your land is impassable. That doesn't mean you have the right to insist that I divert a lot of water into your property so that it floods and you can make use of the easement. It's only a right you can use when other circumstances come together. The analogy isn't perfect, but hopefully clear enough.
A cheap copyright license might merely be permission to do something. Like upgrading a site license from 10 seats to 100 -- all you really need is a serial number to satisfy the installer, not yet another CD identical to the CD you've already got.
A more thorough license might include the right to access a particular copy -- like the CD included with the package -- but not to access any other copies.
The best license -- and negotiated licenses will often include these sorts of terms -- can get you access to any copy the licensor can access, in particular master copies that most people normally don't get to use, if quality is relevant to the project.
All this having been said, CDs aren't ordinarily licensed in the retail environment, because what occurs when you get one is quite clearly a sale. There aren't even licensing terms, generally. "For private use only" isn't a licensing term, it's a reminder that copyright covers public performance, but not private performance. Private listening can't be licensed, because the copyright holder doesn't have a right to prevent people from doing it, which would be the foundation of granting a right to let people do what they otherwise may not.
This is exactly right..... if it is published, it is "in" the public domain. At this point, the auther or copyright holder no longer has right over distribution. period.
Whoa there, Tex.
The 'public domain' is a term of art, which here basically means that a work is not copyrighted. Since copyrights are not absolute rights over a work, but are instead more limited, one could say that a copyrighted book is in the public domain with regard to the right to read it -- since reading is not a right governed by copyright -- but this wouldn't be the same as saying the work as a whole is in the public domain.
Under the current law, publishing a work does not place it in the public domain overall. Further, the copyright holder does have the exclusive right of distribution. There are exceptions to that right, such as first sale, but it's quite wrong to say that the copyright holder can't control any aspect of the distribution of a work merely because it is published.
It was put in the public domain without licensing, and is therefor public domain.
No, it was put on the Internet. There's no indication that it is in the public domain, i.e. that all the copyright holders (and I assure you, the record company is not the only one) have given up their copyrights willingly, or have lost them through some operation of law.
This being the case, downloading the music without a license would be infringing. So just to download it, there has to be at least an implied license -- implied from the conduct of the record company in putting it on the net in the fashion they did -- to make new copies (since that is an unavoidable step in downloading anything). What limits, if any, will be read into that implied license are unclear, but important to know.
No "license" that you don't actually sign can restrict your rights under copyright.
Why wouldn't it? What's so magical about a signature?
If you don't have a right to download a copyrighted work and thus make a new copy of it (an infringing act, barring permission, or an exception in the law), then in order to be granted that right, you might have to shoulder some obligations, such as not exercising your right to engage in first sale with regard to the lawfully made copies of that work you've made pursuant to the grant.
The GPL is quite similar: it grants a right you don't normally have -- making copies, making derivatives, distribution -- but imposes an obligation to distribute source if you accept the grant and engage in those certain behaviors.
One obligation for the licensee is much the same as another. It doesn't matter whether it deals with first sale or not.
When an MP3 is offered for download (either at a price or for free), it's obvious that a copy of the file has to be stored on something on the downloader's end in order for it to be useful. That "something" may be RAM, a hard disk, a flash drive, or a recordable CD, and I can't see anything in copyright law that would restrict the downloader's choice of the medium, based on various "fitness for purpose" consumer protection laws. Really, would it make sense to be allowed to download the MP3 to a flash-based iPod, but not a hard-disk iPod?
If the copyright holder makes the legality of the download contingent on using one particular medium and not another, it's his choice. He doesn't have to permit the download at all. If he decides to only permit downloading by red-haired people on alternate Thursdays, then he has every right to do so. It might be silly, but there's nothing to override his choice.
So, the question becomes: are all digital sales protected by the first-sale doctrine, even if the purchaser must provide the media for "fixing" themselves?
They're protected by the doctrine unless the downloader has willingly promised not to exercise it. First sale isn't an inalienable right. Even when the Supreme Court first recognized it in Bobbs-Merril, they acknowledged that it could be contracted away. The right is only there in the absence of an agreement that it's not; that is, it's the default, not absolute.
There is of course a lot of room to argue about how we should regulate the right to contract, how we might reform the UCC, how we might reform copyright law, etc. to deal with relatively recent developments like nearly ubiquitous adhesive licensing and the way that computers must copy things in order to use them. But I'm talking about what the law currently is, not what we'd like it to be. After all, I figure that education as to the sorry state of these laws is our best chance to get meaningful reform. Overly optimistic misconceptions are no good toward that aim.
A question, and I'm asking because I honestly don't know, has it been clearly established under US law that distribute and delete equals transfer?
AFAIK it has not, and it likely wouldn't be if squarely addressed. Instead, it would be infringing as a new copy was made (the law doesn't care if an older copy was then destroyed; it's the act of copying that matters, not the number of copies left at the end of the day), and worse still, there was also distribution (or more accurately, performance or display) involved as well.
"I own the copyright to that music, I grant you a license to listen to it and do anything with it you wish as long as you don't give it away or try to sell it". Pretty standard license and actually I think encapsulated in the copyright law itself.
Hm, sounds problematic to me. Copyright doesn't include an exclusive right to listen to music. The copyright holder can control making copies of the music, making derivative works based on the music, performing the music, broadcasting the music, etc. but not actually listening to it. That's free.
The closest the copyright holder could get would be to not let anyone else have copies of the music, and to require anyone who wanted to listen to have to pay a fee to do so. This would basically be providing a venue -- the same thing that a concert hall does -- and would really have nothing to do with copyright. Charging admission to venues works just as well with public domain materials (e.g. paying money to go see an uncopyrighted movie in a theater).
The other stuff though; the 'do anything with it you wish' is far more interesting. That would permit people to, say, make derivative works based on the music (e.g. a music video), and with the paltry limitations, to publicly perform it (e.g. on MTV) or rent out copies of it.
The copyright law also says that you must be granted rights explicitly rather than assuming them.
No, it says no such thing. In fact, copyright licenses are probably more often implied than express. For example, your post to which I am responding is (probably) copyrighted. You didn't expressly give me permission to download it (as I necessarily must simply in order to read it), but were you to take me to court over it, you'd surely lose, because your conduct in posting it to a public forum such as this granted me that right.
The law does say that exclusive licenses have to be written and signed by the licensor, though, so perhaps that's what you were thinking of.
If that also applies to advertising my goods then the location of the ones that I am giving away for free for certain purposes (usually promotional to a specific group) is mine to distribute as well.
Why would the location be copyrightable at all? Sounds like an uncopyrightable fact to me.
I don't grant you the right to figure out how to make the cars real and give them away, only I have the right to do that.
Well, you'd have to have that right. Certainly copyright only covers a few specific rights with regard to a work, leaving the rest to the public domain even during the copyright term (e.g. while not everyone has the right to print up new copies of a book, everyone has the right to read extant copies at will). I think the analogy does break down here -- patents require you to tell the world how to do it, if that's what the subject of the patent is. Trade secrets don't protect against reverse engineering, so anyone is free to apply their own brainpower to breaking your control over the secret by independently discovering it. And while we're all well aware of how perverted copyrights have become, traditionally they mainly tried to protect published works, not secret ones. (Of course, there is good reason to protect manuscripts that are intended to be published in the near future, lest pirates cut the author off at the pass, as it were, but it is important to keep this from being abused; if an author has no intent to publish, or is being ridiculously slow, then, setting aside whatever right of privacy implications might arise, copyright policy would favor the pirate; creative works are only good for the public when the public can get at them)
And no simply because it is available on a particular URL for download it is NOT free of licensing nor do you even have permission to download it.
True. Merely because a work can be accessed at a particular URL doesn't mean that everyone has the right to do so where it would infringe to do so (and since downloading is necessarily copying, permission or an
The First-sale doctrine applies only to tangible property. It does not apply to an mp3 you downloaded.
Well, that's not entirely correct.
The reason why downloading can be infringement is because when you download a work, you necessarily fix the intangible work in some tangible medium, e.g. RAM, or a hard drive, as you do it. Fixing a work in a tangible medium constitutes reproduction under the copyright law, and reproduction is one of the exclusive rights of the copyright holder.
However, first sale applies to all lawfully made copies (a copy is a tangible medium that the work is fixed in; when you download something to your hard drive, the hard drive becomes a copy of that thing, along with whatever else the hard drive is), regardless of who made them. Any person who owns a lawfully made copy may, for example, sell that copy, without permission from the copyright holder. The statute is at 17 USC 109 if you'd like to look at it.
So if you were given permission by the copyright holder to download some music and fix it in any medium you wished, you could just start burning CDs and selling them, and it would fall under first sale. I suppose you could also just give away your hard drive or something, but generally people don't like to do that. However, it's more common that the copyright holder permits you to download the music only if you agree not to distribute copies of that music to other people. In that circumstance, so long as you don't sell, or give away copies, the copies you make are lawfully made. If you do sell them, then they're no longer lawfully made (you've exceeded the scope of the permission to download them in the first place) and so first sale doesn't apply.
I'm sure that folks here can see some parallels to the GPL: you can copy, distribute, and modify GPLed software as you like, so long as you obey the instructions of the GPL to make source available; fail to do that, and you can't have lawfully done those other things.
here is a hypothetical: I am an artist. I spent most of my adult life poor, my family is also poor because of this. Right around the age of 50 I make a hit. It is going to sell and I am going to get paid like a rockstar. I tragically die. Should my family not get the money from my hardwork?
Sure. This is a good argument for flat copyright terms, instead of terms based on the life of an author. Let's have copyright terms that last for, say, 5 years, renewable in similarly short increments, for as long as, say, 25 years. (Most works make most of the money they'll ever be worth within no more than 15 years, and often very much less time) Then it doesn't matter when you die; the term lasts as long as it lasts. This is traditionally how copyright terms in the US have worked, and it's worked pretty well.
Or, what if I spent years working on something but it takes it a while to come to fruition. So I may not make a million bucks in a year, but it may take time - a slow trickle of funds. A few thousand dollars every year. Why should I not enjoy that money I worked for.
Are you saying that the work takes a long time to finish, but makes money upon publication, or that the work is published and takes a long time to make money after publication?
In the first case, who cares? Copyrights should last a long time for unpublished works, to deter people pirating manuscripts, but not so long that authors have an incentive to sit on a manuscript; copyright is interested in getting works published and ultimately in the public domain, not merely protecting them merely to make a do-nothing author happy.
In the second case, I have no problem with authors seeking long copyright terms, so long as it's not automatic; the author should have to seek a copyright in the first case, and deliberately renew it frequently, to indicate continuing interest. Ultimately, though, the term will need to expire. If the author couldn't turn a profit after a couple of decades, then the odds are that he never will. Exceptions are rare enough so as to not be worthwhile in setting policy, for the same reason that people who miraculously survive in a tornado out in the open are not extolled as reasons to not take shelter in a proper basement.
There is no monopoly on games, music and movies.
The monopoly is on a specific game, or piece of music, or movie. The reason piracy appeals, is because one copy is as good as another, at least so far as copyright goes. I could go to a bookstore and buy any of a dozen different copies of Shakespeare, from different publishers; they're interchangeable commodities. A copyright is a monopoly on a commodity, i.e. that specific work, identical copies of which could otherwise be made by anyone.
The content is theres not yours.
Nonsense. We have a right of free speech, and this encompasses the right to repeat the speech of others; that's why the state can't prevent me from reciting Shakespeare, though I didn't write it.
The government has no power not ultimately granted to it by the people. Copyright is the people willingly giving up a little bit of our free speech. No one would ever do this just because; we expect to get a greater benefit out of it than it costs us. In particular we want to encourage authors to create works, to publish those works, and for those works to be as unprotected as possible, and to enter the public domain as fast as possible. We want the greatest public benefit for the least cost to ourselves. It's great if authors benefit from it as well, but only to the minimal extent necessary to get them to create and publish. Why would it be in the public's interest to give them more?
But the current copyright laws are probably not providing the greatest possible public benefit. And increasing them probably wouldn't increase the public benefit. So it seems likely that the best way to serve the public interest -- the only interest that counts -- is to reduce the length and breadth of copyright.
Well, a lot of that argument depends on whether you feel that intellectual property can and should be left as a legacy for children and grandchildren. I'm of the opinion that it should, but then again, I also have a stake in that.
If I may ask, why?
If it is to provide for them, let's remember that the vast majority of copyrighted works have no copyright-related economic value. Of the few works which do, the vast majority enjoy the vast majority of their copyright-related economic value within a very short time of publication in a given medium. For example, a movie makes most of its box-office money in the first weekend it's released, and for each week thereafter, ticket sales drop. Eventually it does poorly enough that it is no longer shown in the theater. The cycle repeats with discount theaters, pay-per-view, sales of copies (to viewers and rental stores), subscription cable licensing, basic cable licensing, broadcast tv licensing, etc. Within a few years 90% or more of the money that will ever be made from the copyright on the movie has been made. Only dregs remain, which can take far longer to wring out. Only a minuscule number of works have significant lasting value.
The odds of making that sort of work are on par with winning the lottery.
Since most works are worthless, and most works which have worth are close to worthless within a few years, leaving those works as a "legacy" to one's children and grandchildren would be pointless at best, or a sad joke at their expense at worst. Gambling on the works being of the rare sort that are of lasting significant worth is no different than leaving them a big pile of lottery tickets in your will. It's not a good justification for setting copyright policy, and they're not responsible people to listen to.
Instead, if people want to leave something to help their survivors or descendants, they should carefully invest the money they made initially. They should make sure to get life insurance. They should be responsible with their money. And they should support social welfare programs so that even if they die penniless, the others won't be cast out onto the streets. Better still, instead of long copyright terms, which protect only a teeny tiny number of authors (or more likely, publishers instead), this is all good advice for everyone, not just authors.
Further, at a minimum, even if you do think that excessively long copyright terms ought to be available for the fraction of a fraction of a fraction of a percent of works that will be worth the trouble, then let's at least recognize that those long terms are not needed for all works, or even most works. Further, let's remember that it is the copyright holder who has a vested interest in keeping the copyright, and who is best-informed as to how much money he is making from exploiting the copyright. Therefore, isn't it sensible to require authors to register in order to get copyrights initially (so that the majority of works, which are never of any copyright-related value, can immediately pass into the public domain, since the copyrights are worthless), and let those copyright terms be quite short but renewable, so that every few years, the copyright holder can re-assess how much the rights are worth, and whether there is any point to renewing them. The registration and renewals shouldn't be free (since then they'd always be renewed without any honest assessment of future value), but should cost a token amount so that the copyright holder has to actually think about it, and won't want to waste money on a work whose value has gone.
In fact, having the work in copyright longer can improve the work's chances of survival, as it increases the length of time that the work has a champion.
Actually, you're talking about popularity. Survival of the work is promoted by works being in the public domain; for example, most works we have from antiquity are not original copies, but copies of copies, because the central libraries didn't survive. Copies that were passed around, and wh
Also I'd like to debate that music and movies qualify as "useful arts" and therefore do not warrant protection under copyright.
Well, that's actually a fairly common misconception. When the Constitution was written in the mid-18th century, the 'useful Arts' meant applied technology, and 'Science' meant knowledge, generally. Thus, the useful arts are the subject of patents, not of copyrights.
This is clear if you look at the construction of the clause, which always goes copyright, then patents: The Congress shall have power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
There are some other remnants of that meaning of art: Patents are concerned with state of the art technology. But a patent can't be issued if the invention is already disclosed in prior art. And the patent has to be written so that it can be understood by a person having ordinary skill in the art.
So music and movies don't have to be useful, they just have to contribute to the corpus of human knowledge, which is very difficult not to do.
When did that right become transferable?
It has always been transferable, all the way back to the first real copyright law, the British Statute of Anne, in 1710, and in the first US copyright law, the 1790 Copyright Act. Remember, copyrights are not directly valuable to authors. They're basically publishing monopolies. The author makes money by selling the right, or licensing the right, to a publisher. And generally, publishers would prefer to buy rights, rather than merely license them. So they pay more for the former than the latter, and often enough, won't even bother with the latter. Since there are plenty of authors hoping to get published, the market favors the publisher. Authors can always self-publish, but they may find that unappealing.
The system is flawed, and I don't think our laws reflect the true sentiment in the Constitution.
I agree, but I think the real problem is that Congress is more attentive to the wealthy publishing lobbies (e.g. MPAA, RIAA), rather than to the public good, which is what copyright is supposed to promote. Still, this is a general problem of political misfeasance and malfeasance, and not at all limited to copyright.
Of course, it's impossible to reconcile that with freedom of speech (which encompasses the verbatim repetition of others' speech) so perhaps it's not really a human right after all. Certainly it's no natural right, like free speech is. And it's a negative right (i.e. copyrights aren't a right to do anything -- that's free speech -- but instead is a right to prohibit other people from doing things), which makes it even more dubious to claim it's a human right.
Frankly, while I have no problem with the idea of copyright as a utilitarian system meant to benefit the public, or with copyright systems that actually accomplish that, the notion that it's a human right is obvious bullshit.
The problem with your argument is that it is about as sensible to give authors long copyrights in lieu of pensions as it would be to give them lottery tickets. Most copyrighted works have no copyright-related economic value. Of the small number that do have value, most only have value within a short time of publication in a given medium (anywhere from hours to years, usually 12-18 months) before they too lose nearly all of their copyright-related value. Only a teeny tiny fraction of works have long-lasting economic value, and in almost all cases where that occurs, the work is quite valuable from the get-go.
Consider a movie: it makes a lot the first weekend it comes out in theaters, but receipts go down each week until it is finally replaced by something new. In time, it goes to pay-per-view, home video, subscription cable tv, broadcast tv, etc. Each time, it makes most of the money it will ever make up front, with diminishing returns thereafter. Eventually, there's no more new media to publish it in, or at least not where it's worthwhile (people who bought a movie on DVD don't seem enthusiastic about buying it again on Bluray), and it falls entirely out of print.
So copyrights are useless as a substitute for pensions; most authors will wind up with no new money coming in in their old age. The handful that do, aside from being on par with lottery winners for luck, have probably already made a lot of money, and thus have little need for more (unless they've squandered it, in which case I have little sympathy).
If you actually cared about authors' old age funds, not to mention the widows and orphans that are oft-invoked, you would not dare to suggest that copyright extensions are a solution, when they clearly are not. The only people that are helped are the holders of the teeny tiny handful of copyrights that have long term value, and frankly, those people, with few exceptions, have been raking in enough cash since the work was published that we don't really need to concern ourselves with how they'll get by in their dotage; they're already set, or at least have had every opportunity to be.
If you're worried about elderly authors living in poverty, then an infinitely better idea would be to encourage authors to save and invest wisely in their youth and middle age, to not make bad deals, to get insured to provide for themselves or their family in case of calamity, and for the government to provide social welfare for anyone in need of it, whether they are an author or not. This is much fairer, since everyone should do this, and thus the benefit is to all of society, and not a tiny special interest, and further, it actually can succeed, where your suggestions are doomed to fail at achieving your stated goal from the very start. I suppose you might be lying, and invoking the image of an old, poor author dying in a gutter in order to further stuff the pockets of the already-rich (or once-rich wastrels), but then that would really make me upset.
What lame-brain dummy would think that either :-( or ;-) are trademarkable symbols??? They both originated circa 1980 and therefore are public domain.
I'm not sure what that has to do with anything. Perhaps Russian trademark law is different, but in the US, at least, it doesn't matter who creates the mark, or when it was created. What basically makes a mark protectable is that it is being used to identify goods or services so marked as originating from a particular source.
The word 'apple' has been around for hundreds of years, and wasn't coined by the two Steves but it is a trademark for computers. The name 'Levi' has been around for thousands of years, but it is a trademark for jeans.
Assuming that someone makes :-) brand something-or-others (or offers services under the :-) brand) and people recognize that the smiley is actually a mark in that context, meaning that so-marked goods or services come from a particular provider, then sure, it can work.
But it wouldn't affect other uses of it, like people talking about emotional states, any more than the APPLE mark for computers prevents people from using the word freely with regard to fruit.
50; There is also some federal common law, though it's not as extensive as what the states have.