Well I do not think viewing something, as opposed to making a fixed copy of something, implicates the reproduction right.
That's the problem, basically. Computers are designed in such a way that it is basically impossible for them to do anything without making at least one copy in the process. Nothing can appear onscreen, or be heard through the speakers, or be transferred, or otherwise acted upon, without some kind of copying. It's just how computers work at a very low level.
MAI says that that's enough to potentially be infringing. The copyright parts of MAI are pretty short and easy to get through. Given how foundational it is for any kind of copyright case involving computers, and how influential it's been, it's worth a quick read. The Intellectual Reserve case I mentioned earlier is from D. Utah, but it's the logical outgrowth of MAI, and also is very easy to get through.
Others have identified a possible effect of MAI that's very disturbing. Let us say that Alice has an infringing mp3, which she listens to many times a day for several months. Each time she opens the file in order to listen to it on the computer, the computer reads the data from the hard drive, then copies it into the RAM (and possibly other places, depending on the precise architecture of the computer and what the OS is doing) to facilitate this. After she's done listening, the data is likely erased from RAM, etc., to make room for other data. If we treat each incident of copying the data into RAM as a separate infringement, then it is been suggested that it might be a criminal infringement per section 506(1)(B); Each listening could contribute toward the $1000 retail value total needed to trigger criminal liability.
Again, I'd say that you should look at MAI and cases built on MAI when you have a chance.
Well there are at least 2 types of downloading. One that results in a copy being made. And one that is ephemeral, in RAM only, and which does not result in any copy being made. The latter type would not, in view, implicate the reproduction right.
Oh, come now, Ray. I expect better from you.
The 9th Cir., in MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993) was pretty clear:
The district court's grant of summary judgment on MAI's claims of copyright infringement reflects its conclusion that a "copying" for purposes of copyright law occurs when a computer program is transferred from a permanent storage device to a computer's RAM. This conclusion is consistent with its finding, in granting the preliminary injunction, that: "the loading of copyrighted computer software from a storage medium (hard disk, floppy disk, or read only memory) into the memory of a central processing unit ("CPU") causes a copy to be made. In the absence of ownership of the copyright or express permission by license, such acts constitute copyright infringement." We find that this conclusion is supported by the record and by the law....
Peak argues that this loading of copyrighted software does not constitute a copyright violation because the "copy" created in RAM is not "fixed." However, by showing that Peak loads the software into the RAM and is then able to view the system error log and diagnose the problem with the computer. MAI has adequately shown that the representation created in the RAM is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration."
And MAI is a widely influential precedent. I don't recall having heard of any cases that looked at the same issue and came out otherwise. As I don't much care for computer users needing to rely on fair use for virtually everything (see, e.g. Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999) finding that viewing a web page, if making a copy in RAM as a necessary step in order to do so, can be infringing), I'd certainly like to see an on point case that disagreed with the MAI court.
File-sharing is not inherently illegal. Neither is uploading, downloading or making available.
No one has said that it is. I said that downloading, for example, is reproduction for copyright purposes. Whether or not that reproduction is infringing depends on other factors. I said as much in my earlier post:
If you download a file, you, the downloader, are making a copy of the file on your computer, which may be infringing (if it's a copyrighted work, if you're unauthorized, etc.).
What is cut and dried is that downloading is reproduction, and likewise, what sorts of circumstances lead to that act being lawful or unlawful. You're conflating downloading and infringing, but you oughtn't. Maximalists sometimes propagandize along those lines, but even they know the score.
The musicians will figure it out first, just to get all the "illegal" songs out of the promotional channels.
The music industry hasn't figured it out yet, and frankly, I am dubious as to whether or not there is any viable solution that generally preserves the world of commercial music as we know it. I'd be interested to see one, but personally I'm proceeding under the assumption that the music industry cannot be saved, and that we'd better try to live with everyone engaging in file sharing, whether it is authorized, or unauthorized, legal or illegal.
The court may have decided that, but it is factually incorrect, indicating the court's severe lack of understanding of the basic physics of electronic information. Nothing is "fixed" in RAM.
"Fixed" implies permanence. Take a CD out of the player and the music is still on it. It is fixed. You cannot erase it, modify it, replace the data with something else, change the order of the songs, or even delete the contents.
Take the RAM out of a computer and try to retrieve the data. You can't. RAM is volatile. Any data that resides there is temporary and definitely not fixed.
Well, fixation again, is a term of art, which is defined in the statute. A work is fixed if it "is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." The MAI court said that since it is possible to perceive and reproduce the data fixed in RAM -- as must certainly be the case if it is working properly -- then it is sufficiently stable to qualify as fixed for copyright purposes.
After 40,000 cases, the courts are just now realizing that "making available" doesn't fly.
Well, it's actually a pretty novel question. Until recently, no one brought this up, either to claim that it was infringement or that it wasn't. Courts rarely raise issues on their own, so if no litigants brought it up, a court wouldn't even look at the matter.
As written, the law would seem to specifically exempt the copying of information that is not fixed -- simply because they could not imagine how you might do that when the law was drafted. They do not address the Internet, file-sharing, uploading or downloading. Nothing on the Internet is fixed. Most of it isn't even spelled properly.
More importantly, Congress has not taken it upon itself to modify the law to include these concepts since this became an issue.
Sure they have. Congress was aware of computer-related issues becoming more important when they were writing the 1976 Act and formed a commission (CONTU) to look into it and advise them. And Congress has even amended and written computer-related provisions of copyright law in light of MAI.
Can the Supreme Court address the controversy without a specific case?
No federal court can do so; federal courts do not issue advisory opinions. And no state court can do so, since copyright is exclusively in federal jurisdiction.
it would be nice if we could replace the semantics with actual laws that say whether file-sharing is copyright infringement and, if so, is it the uploader or downloader making the infringing copy, and all of the other basic questions that we have been debating about for years now, each of which are still open to litigation in every single case.
That was settled ages ago, with Napster probably being the leading case.
If you download a file, you, the downloader, are making a copy of the file on your computer, which may be infringing (if it's a copyrighted work, if you're unauthorized, etc.). If you serve the file to others, you, the uploader, are distributing the file, which likewise may be infringing. The latest issue was whether you had to make the file available to be served, or whether someone had to actually take advantage of the offer; the statute, and now caselaw, suggest the latter. And if you're providing the resources for this, such as creating the sharing software, providing the network, etc. then you may also be liable for the infringements of the users, depending on precisely what you've done. Napster was contributorially and vicariously liable, IIRC. Grokster carefully avoided that, but wound up with a whole new class of secondary infringement -- inducement -- that they were on the hook for.
Really, if you look into it, you'll see that the issues are fairly cut and dried. As such, I think that efforts to oppose the copyright maximalists would be most fruitful in Congress, rather than the courts. The former can make drastic fixes to the laws, but the latter have to deal with whatever the laws give them to work with.
The key is that the statute defines what a copy is, in 17 USC 101. Long story short, a copy is a material object in which a work is fixed. So a story is not a copy, for example, but a paperback book in which the story appears is.
In MAI v. Peak, a widely-followed case, the Ninth Circuit decided that when computer software was written to RAM in the process of running the program, this constituted the creation of a copy, since the RAM is a material object in which the work was fixed. This also means that when you download from someone, since the server obviously cannot send a tangible object over the network, the downloader is creating a new copy. Later courts have confirmed this to be the case, in opinions such as Napster, Grokster, and my favorite (for its clarity, not for the outcome), Intellectual Reserve v. Utah Lighthouse Ministry.
There is nothing to indicate that various temporary copies made in the course of downloading -- such as in the memory of routers -- would not be infringing. In fact, the law implies that it is, by providing a defense to ISPs that wouldn't seem to be all that necessary otherwise, at section 512(a).
What if I hang a painting in my restaurant? What if I put a statue in my corporate lobby?
It's not infringing to display lawfully made copies. See 17 USC 109(c).
What about tourists who take photographs of statues
That could be a problem for them.
and buildings?
That's typically not infringing. See section 120(a) (which itself usually doesn't need to apply, since most buildings aren't copyrighted anyway).
Can sculptors file a lawsuit for unequal treatment under the law, for discriminatory protection for different types of USEFUL arts, such as the different protections afforded musicians and sculptors?
First, copyrights don't deal with the useful arts; patents cover that territory. Copyrights deal with science, by which the framers meant general knowledge. Second, while an author could try that kind of an argument, I guess, they'd be pretty certain to lose, in light of Eldred, and given that sculptors (for example) are not a protected class.
Or can an artist who creates a statue which is placed in a public park place a camera on or in the statue and sue everyone who looks at the statue for copyright violation?
Neither looking, nor reading, nor listening, are infringements to begin with. See section 106 for most of the activities which are capable of infringing.
Do post card creators/vendors have to pay royalties for pictures of works of art on those post cards?
Depends on the art. For public domain works, e.g. the Mona Lisa, no. For copyrighted works, yes, if that's a part of the deal they worked out with the copyright holder. (It could just as easily have been a lump sum payment, instead of a royalty)
If any artistic creation goes into the public domain and anyone can use and re-use artistic works not of their creation for monetary gain, you would see less creation of works of art. Artists would still do their artwork because they need to scratch that creative itch, but their output would be far less frequent and the quality would probably be lower as they would not hone their technique as much because they are busy working day jobs.
That is possible.
However, please bear in mind the goal of copyright: to serve the public interest. The public has two specific interests with regard to creative works. First, it wants the greatest number of creative works, whether original or derivative, to be created and published. Second, the public wants works to be in the public domain, since those are the works that the public can make the greatest use of.
So merely saying that reducing copyright could cause fewer works to be created -- quality is irrelevant, since the copyright system has no means to judge quality, which is subjective anyway -- doesn't mean much, since you'd be gaining on the one hand and losing on the other.
The natural state of affairs is no copyright, which means we have a relatively small number of original works being created, a moderate number of derivative works being created (e.g. Shakespeare writing his plays by copying a number of earlier works), and the maximum in freedom with regard to those works. We can add up all of these public benefits and get a baseline. When we have copyright, we reduce the freedom we have as to works, in order to hopefully, but not inevitably, increase the creation and publication of works, particularly original works. Copyright is acceptable if it produces a net outcome greater than this baseline. Copyright is unacceptable if it produces a net outcome less than the baseline; that would literally be a situation where we'd be better off without copyright! The ideal copyright is the one that has the greatest net increase over the baseline.
Copyright is an economic incentive. It can't make an author famous, or scratch the creative itch; that happens regardless of copyright. All copyright can do is cause whatever money can be generated by exploiting the work to flow to the copyright holder, rather than be dispersed. It's not really perfectly effective at this -- some authors might ignore printing up a very small run of a work, even though there are a few customers, even though if the work were in the public domain, there probably would be a willing publisher.
We know that for the vast majority of works, there is no economic value at all. Of the tiny fraction remaining, the vast majority have almost all of their economic value realized very quickly after the work is published in a given medium. For example, a movie makes most of its box office receipts in the first week it's released in theaters, with each successive week having lower sales until finally it can no longer stay in first run theaters. This repeats as the film appears in second run theaters, on pay per view, in video stores, licensed for pay cable, basic cable, and broadcast TV. There are exceptional works that remain valuable over a long period of time, but they're incredibly rare.
The point of this is that not all increases or decreases in copyright are the same. Going from no copyright to one year of copyright would have tremendous incentivizing effects, and would probably be a net gain for the public. OTOH, going from one million years of copyright to one million and one years would likely not incentivize anything, but would harm the public, producing a net loss.
So while I do not advocate abolishing copyright (though I leave it on the table, since perhaps someday that would be the best option), and while reducing copyright could certainly result in the creation and publication of fewer works, as you suggested, that does not mean that it is a bad idea from the perspective of the public, which is the only perspective that matters. Going from our current li
I'm personally fine with his continuing to sell copies of his own work.
Just because a work falls into the public domain, that doesn't mean that he could not continue selling them. He just wouldn't have a monopoly on them. It's like patents: 3M invented sticky notes, and the patent expired, and now lots of people sell them, including 3M.
As for software copyrights, 5 years is just silly. By now Windows XP would be in public domain.
Why is 5 years silly? It's silly to have the copyrights last so long that the work, when it falls into the public domain, is so obsolete that no one would ever use it, and that it may no longer be portable to anything modern, for a lack of people still having the appropriate skills, hardware, etc. Software works age very fast before they are rendered effectively unintelligible. At least a newspaper from hundreds of years ago can still be read. Software from a few decades ago can be quite difficult to get running. This is why it is also imperative to require that software registrations include a full copy of the source, with sufficient comments and other information so as to aid a programmer having reasonable skill in the art to make changes to the program, port it, etc. Also why we must take all the steps we can to eliminate DRM.
If games are art, why can't they be copyrighted as such?
If paintings on the wall stopped working as fast as software tends to, we'd have the same problem. No one is saying software isn't a valid kind of art; just that there are practical issues that demand unusual measures. Maybe someday the software field will stabilize such that this isn't so important anymore.
So if I take a great picture... a company should be able to resell it for profit unless I have paid the money to send copies to a government agency?
Basically, yes. If you want a copyright, all you need do is step forward and ask for it. It will involve filling out a very brief, very simple form, so that we have your contact information (helps the company find you and make a deal), a bit of information about the work (title, date of creation), etc. It will involve sending in a couple of high quality copies of the work (so that there can be no doubt as to what works it is, specifically, that you want protected; so that the works can be preserved for as long as possible). And it will involve a very modest fee, to ensure that you're serious, and to avoid abuse; I'd be happy with as little as $1. (Cf. how tiny fees have been suggested as a solution to spam, which is ultimately a problem of it being essentially free to send emails in great volume. We don't need copyright spam.)
In order for there to be swift certainty as to what was copyrighted and what was public domain, the deadline should be, say, one year after first publication (where publication is very broad, including public performance) of the work, anywhere. So you couldn't sit on it for too long. It used to be upon publication, but lots of works these days are published basically immediately, and it seems to me that we shouldn't have the paperwork get in the way of that.
For unpublished works, there should be some automatic protection, but not a great deal, so as to encourage publication. Further, it should only subsist so long as there is an honest intent to publish (since if the author doesn't intend to publish, we may as well encourage third parties to publish it independently; better that someone does than no one) and only for a relatively short span of years, so that people don't sit on it (e.g. copyrighting letters written by one's ancestors centuries ago).
Copyright on creation makes reselling something you find a deny-by-default, which I think is a good idea.
Why? The public is better off, the more works there are created and published. It doesn't actually matter who publishes them, if the author isn't having it taken care of. Copyright should be opt-in, and third parties who act reasonably but nevertheless infringe should be let off the hook. A registration system, meanwhile, coupled with notice attached to the works, is a good way to make sure that people know that the work is copyrighted, and don't reasonably infringe.
I also do not agree that companies should be unable to hold copyrights.
I agree with you. Authors should be free to assign copyrights as they see fit; they are not children, and we need not act paternalistically toward them. If they want to assign them to a corporate entity, then so be it. Indeed, I have no qualms about abolishing termination of transfers and liberalizing the work made for hire doctrine along these lines.
When it's released, it sells well. As it gets older, the demand for it drops off. So... the older it gets, the less money it makes, the more you have to pay to protect it.
Yeah, I've never really cared much for the progressively increasing renewal fees, either.
However, having renewals is quite important, and is an age-old feature of copyright. The logic behind it is this: Copyright is meant to incentivize authors to create and publish works, because the public benefits from an increased quantity of published works. Authors who would create and publish anyway, without the extra incentive of copyright, shouldn't get copyrights, since it would be wasteful. (Like having bids for a government contract, and then offering to pay more than the amount of the winning bid, for no reason) Well, just like copyright as a whole may not be necessary to incentivize the creation and publication of all works, the maximum length of copyright may not be necessary for all works. Some authors may be willing to accept a 5 year copyright, and others will require a 25 year copyright. With renewals, and relying on the authors to self-identify, since we can't read their minds, the former will likely stop bothering to renew after 5 years, while the latter will be likely to renew.
This means that the public gets works created and published that otherwise would not have been, by offering copyrights, but gets the works in the public domain sooner than they might if they indiscriminately offered too much copyright all the time.
Everyone wins: the authors get as much copyright as they want (up to the maximum) merely by registering or renewing periodically, and the public gets the most works created and published and in the public domain as rapidly as possible.
So if the Melvins put out a new album, could afford the copyright for 10 years and then at year eleven, you have people grabbing the songs and slapping 'em on compilations and selling them for cheap and the band sees none of that money... that is somehow right and justified?
Yes. In an ideal world, authors would create and publish as much as possible and the works would be in the public domain from day one. Copyright is at best a useful evil, but it's never inherently worthwhile. So long as it produces a closer net outcome to the ideal than if we didn't have it at all, it is tolerable, however.
Similarly, could Tolstoy have written Anna Karenina or War and Peace over the course of years without copyright to ensure his lifestyle was sustainable?
That's not the best example, given that Count Tolstoy was a wealthy aristocrat, who probably didn't depend on copyrights to keep him from starving. Also, while I do know that Russia had some kind of copyright laws at that time, how much they would be worth to an author in the mid-19th century depends a lot on precisely what those laws were, and how the publishing industry and economy of the era worked.
The thing is, pre-Anne copyrights protected publishers and/or were tools of official censorship. They may have been called copyrights, or were copyright-like, but they were not really copyrights in the sense of what we think of today.
For example, under the Stationers' Copyright, a particular printer might get a copyright to print Virgil's Aeneid in the original Latin. It didn't matter that it was written by someone else, over a thousand years prior, and that he had no special permission from the author. Rather, the printers colluded and divided the market up so that they did not compete directly against one another, and could keep prices high. Authors didn't really participate in this.
In 1710, long after Shakespeare's time, England set up the first modern copyright system, where the system was intended to serve the public interest, and the rights were vested in authors, rather than publishers. The publishers didn't like it, but have learned to live with it.
This was discussed on that page, btw. Perhaps you should've read more of it.
Not all copyright infringement is a crime, but some is. See 17 USC 506 and 18 USC 2319. N.b. that some copyright infringement has been criminalized since the late 19th century, in the US, so it's not a new thing.
You point is not proven, since the conflict did exist in the 19th century
It was solved by the US opening the copyright system to foreign authors, provided that they complied with our formalities. We had this working perfectly well, without bothering with Berne, for about a century. I don't even propose reviving the manufacturing formality, so it would actually make things even easier than it was before.
This being said, I agree that registration is probably a better system, now that the internet will allow it on a global scale.
Provided that best copies are still mailed in (where they are not in some machine readable form natively), I have nothing against allowing registration online. Online trademark registration is very convenient, and this would lend itself to a better online system for copyright searches. Putting the entirety of the public domain LoC collection online as well, would also be desirable, and perhaps helped out by this.
However, do bear in mind that copyright is national, not international. Even Berne just deals with the minimum standards and national treatment that each nation must implement. The last thing we need is one copyright law for everyone. It's better for each country to have its own laws, which are fine-tuned to serve their own people. I see no point in them being uniform, or having any minimum standards, aside from the aforementioned unilateral national treatment and informal cooperation to avoid mutually exclusive systems that would keep authors from having copyrights in certain jurisdictions, had they opted for copyright in others.
That's the problem with Berne and TRIPS. They've tied the baby and the bathwater together (not that there's really much that's worthwhile in either) with the idea that since no one would give up the former, they could greedily push through the latter. The thing is, the latter's become so damn onerous that it has encouraged many that the former just isn't worth the trouble any longer.
Not such a good idea anyway. The U.S. benefits far more from international harmonization than anyone else.
Yeah, but the US is big enough that we can get away with it. We've been outside of Berne before, and there's enough dissatisfaction with these (quite a bit of it caused by our own USTR) that if we adopted an isolationist, unilateral policy, others would likely follow. My main point is that I don't want minimum standards, and I don't want the hassle of reciprocity, but I do want national treatment. If some country out there is happy with life+50, then good for them. I won't tell them what to do. But I don't want that here.
On top of that, TRIPS is not self-executing.
Yes, but you can easily get into a fix with the President and the Senate binding the US, even if the House doesn't want to support the enabling legislation. They didn't; the whole system failed, but it was still a deliberately sneaky thing to do, and the tactic continues to be employed.
Participating in the established process
There is no established process. The terms never go down, and Berne never gets better. Cutting the Gordian knot is the only way.
Well, I guess it's a good thing then, that I fully support granting national treatment to foreign authors, regardless of whether or not their countries return the favor! Not once did I suggest that we not grant copyrights to foreign authors; I just said that the foreign authors need to register their works exactly the same as our domestic authors.
Whether or not a particular author seeks a US copyright, regardless of his own nationality, is up to him.
Further, let's bear in mind that unregistered works, would merely be public domain works, the same as works on which the term has lapsed. Right now any publisher can put out copies of public domain works, rather than pay for copyrighted works to publish. Yet, they tend to prefer to publish the latter! This is because copyrights are really of little direct value for authors, but are tremendously valued by publishers, since they don't like to have to compete with one another over the exact same material. So you would not see a flood of unregistered public domain works being published instead of copyrighted works (regardless of nationality, see above) because it's really not in the publishers' interests to do so. A few might pursue that as a niche, but that's it.
Since the US didn't have automatic copyrights for anyone until quite recently, our own history from 1891 -- when we began to grant copyrights to foreign authors who complied with the required formalities -- proves the point.
That depends on their arrangements with their employer, if they have one. No one is preventing it, but I'd agree that it is not common practice, when possible.
Still, a copyright is not a substitute for a pension. Only a small minority of copyrights have any economic value whatsoever, and of those, the vast, vast majority have most of their value only for a brief time after publication in a given medium. The length depends on the type of work; a daily newspaper has a window of a few hours, a movie in the theaters has a few weeks, a novel has perhaps a year.
Only the tiniest, tiniest number of works have long-lasting economic value. The odds of creating one are on par with winning the lottery. I don't think that anyone would ever suggest that people should play the lottery, rather than invest wisely, or getting a pension, etc.
If an artist is concerned about providing for himself in his old age, or for his family, he should consider whether or not he ought to stay an artist at all; if he can't make money, he really ought to consider a different career. If he does make money, he ought to make careful investments, rather than spend it all, expecting a permanent windfall. He ought to support social welfare programs, as a safety net in case he does run into big financial problems.
An artist who expects to get paid decades later may often find himself disappointed, simply because the audience isn't there. A pension should be more reliable than that.
So if you're going to promote copyrights as a boon for artists, please be realistic about it.
Sure we can. We simply withdraw from the onerous copyright treaties. And let's remember, these treaties were used to do an end-run around the proper legislative process in the US; instead of open debate amongst representatives who have to answer to their constituents, we got a fait accompli.
Remember, Berne et al requires the intolerable life+50 copyright term as a minimum (the US is currently at life+70). All those people who want shorter terms than that must necessarily support their country withdrawing from these treaties. So the anti-treaty sentiment is stronger than you might think.
Personally, I have no use for copyright treaties of any sort. I would like the nations of the world to individually adopt unilateral national treatment, and to informally cooperate so that there are no conflicts which are so great that an author could not have copyrights in two different jurisdictions due to the clash of laws. Other than that, which requires no treaty, we're best off with each country doing its own thing.
...times 163, presumably all different and most in foreign languages if you want the same copyright protection as today.
Yes, that's right. Copyrights exist to cause authors to create and publish their works so that the public domain can be more enriched than it otherwise might be. However, if an author in country A simply doesn't care about -- i.e. wasn't incentivized by -- a copyright in country B, then why would it make sense for country B to give him the copyright? If it was important to the author, he would pursue it. If it is not important to him, he'll ignore it.
If the author apparently doesn't care, why should I? And since the author seems to have been sufficiently incentivized by something else (possibly country A's copyrights, possibly something else altogether unrelated to copyright), it would be pointless to give him a copyright. It would be liking paying for something that's being given away for free!
I am in the US, and I am really only interested in the US reforming its copyright laws. Since the US is a large market for many works, I have no doubt that very, very many foreign authors will register for copyrights, just as our domestic authors will. And if they're uninterested, then why give them what they are unwilling to get themselves? Maybe it will result in the work being made more popular here than it would be by an author who ignores the US market. That's a plus. And if nothing comes of it, then there's really no harm, and there is still the slight benefit of the work being available if that changes, which is unlikely.
I would like to point out that I'm not playing favorites here; I think that the US should unilaterally offer national treatment. That is, we should permit foreign authors to get copyrights on exactly the same basis as US authors, with completely identical treatment. Further, that we should do so, regardless of how foreign countries behave toward us. After all, the mission of copyright is to spur the creation and publication of works in order to get them, unencumbered, into the hands of the public. The nationality of the author is quite irrelevant. Ditto for the language of the form; let there be Spanish and French and Arabic and Chinese forms as well, with enough translators at the Copyright Office to process them.
I would hope, of course, that other countries would follow our example and also unilaterally grant national treatment to foreign authors. I'm not too worried about it, though. Remember, the US did perfectly well with not being a member of the Berne Convention (which sucks, btw) until 1989. In fact, joining it (and the ramp-up involved) is the source of many of the ills we currently suffer!
Meanwhile, I'd like to point out that, AFAIK (I'm not a patent attorney), there is no reciprocity in the patent system. An inventor has to file for a patent in the US, if he wants rights there, in Japan, if he wants rights there, etc. having to deal with the local rules, which can vary wildly, retaining local experts, etc. A registration formality for copyrights would be a piece of cake, by comparison! I can't imagine the paperwork being difficult (name of author, title of work, etc.), and the various national post offices seem to have international mail under control, so deposit would be no problem. Unlike with patents, authors wouldn't need to hire local lawyers to handle the registration (though I wouldn't mind if they did, being a copyright lawyer myself!), and with the falling US dollar, what is a token fee here is likely even less of a hurdle for many foreigners.
How is this bad? It means that if someone from Pottsylvania writes a book for local consumption, and never bothers to register it with the US, that it is in the American public domain, but does that harm him? No, not really; he was ignoring the US anyway. And if someone else does use the book, say, as the basis for a movie, well then at least something productive happened, instead of the author allowing it to rot on the vine. The author isn't being forced, he isn't bei
That's basically right, and it's a good thing. Registration is traditional in the American copyright system, and we have not been without it for very long; just long enough to see how awful automatic copyright grants are. So long as copyright registration is but the most minor of hurdles (contact information for the applicant, a couple of copies of the work for the Library of Congress, a token fee), it will serve to make the copyright system available to help those who want it, while letting the public benefit from the works of authors who don't care about copyrights in the first place. There's no down side.
That having been said, I'm not a fan of this particular bill. Shorter terms, non-automatic renewals, and timely registration as a prerequisite for copyright are much better, even though they'll take more work to achieve. I'd rather pursue that directly, rather than waste time on these mediocre reforms.
Well, although my normal policy is to continue to discuss issues with anyone for so long as they're willing, and we're both able to, I think I'll decline here. If we were ever having a civilized discussion on this subject, it seems to me that you're not holding up your side now. You're not supporting your position -- particularly in the context of RIAA file sharing suits, which was the topic at hand -- and you're getting into attacking me personally, which is interesting, as you're doing so anonymously. You're free to, of course, and I defend your right to do so, but I do find it distasteful, especially with my pseudonymity having been brought into play. On the plus side, I can be pretty sure that I am not acquainted with you offline.
Against my better judgment, and with the caveat that I won't bother to read it or respond to it, let me ask you to answer a simple question directly, and with specific citations: Alice creates a nondramatic musical work and a sound recording of that work, registers their copyrights, and publishes them in the form of phonorecords. While the works remain in term, and lacking any sort of license, Bob then rips a copy of the phonorecord to his computer, and offers the files for others to download from him. Carol downloads the files from Bob to her own computer. Did Bob and/or Carol infringe Alice's copyrights? If so, would their mens rea matter? Again, if you answer, and I'd like it if you did, please precisely cite the relevant authority re: mental state, and which level of mental state, e.g. willfulness, recklessness, etc., is the least required.
Well, you did catch me making a blunder. I cited 17 USC 504, which deals with computing damages, not with determining liability. Mea culpa. The correct statute is section 501, which is the strict liability statute. I really don't know what I was thinking.
Still, to fully correct my mis-cite, I should point out that the mens rea in section 504 does not mean that civil copyright infringement is not a strict liability statute. 504, again, deals with the amount of money awarded; a whole different kettle of fish. So while an infringer's mental state is irrelevant for determining whether or not he is liable, it may sometimes be relevant for determining how much he will owe as a result.
Of course, it is largely up to the plaintiff, whether or not the defendant's mental state will ever be relevant. If the plaintiff opts for actual damages and profits, instead of statutory damages, mens rea is irrelevant. If the plaintiff ignores the money altogether (perhaps he just wants an injunction), then mens rea is irrelevant. And if the plaintiff only seeks the absolute minimum amount (currently $750 in the vast majority of cases; other prerequisites must be met to lower it to the $200 limit, and it is highly unlikely in an RIAA case. See 17 USC 401(d) for why.), then mens rea is irrelevant since the "innocence" of the defendant can't make it go lower, and thus isn't examined at all. RIAA has been known to do this, IIRC, in order to remove issues that could perhaps make it in front of a jury sympathetic to the defendant.
Anyway, 501, not 504, for the elements of civil copyright infringement. In my defense, I was posting at around 1 a.m., after a long day and a nice party.
Incidentally, I fear that you, like many laypeople, think that lawyers get sanctioned or disbarred trivially. We don't. You'd have to really screw up in an amazingly bad way for that to happen. Usually it involves malfeasance, and the most reliable method is to steal money from a client. Stating a correct point of law, or even doing so with a mis-cite, here on Slashdot, would simply not register at all, absent perhaps some really bizarre circumstances that I can't even imagine at the moment.
I was at a party. I have a life outside of Slashdot, you know. And indeed, with my work schedule, I'll be posting less for a few months.
Anyway, given an ad-lib lecture that is not being simultaneously recorded and transmitted elsewhere, it's probably uncopyrighted enough that anyone can take notes and either have those notes be copyrighted (if the note-taker is being creative with them) or uncopyrighted (if they're uncreatively writing down everything that is said). Adding one of those two elements in, though -- reading a pre-written lecture from notes, or a sufficient simultaneous recording -- complicates matters.
In the event that there is a copyright, students are likely to rely on fair use. I leave the fair use analysis to the reader (I have another engagement I need to go to), but I expect that it would be fair use for a student. A business, OTOH, has greater difficulty with the fourth factor, though n.b. that commercial fair use is possible and commonplace (see Campbell v. Acuff Rose), and that the issue isn't whether the infringer makes money, but more whether the infringement impairs the copyright holder from making money. If the commercial notes themselves are not published, and are only used for purposes of preparing a restatement of the uncopyrightable ideas in some non-infringing manner, then this further aids the commercial user in the analysis.
Copyright is NOT the right to sell; it's the right to distribute.
No, it's a bunch of different rights. Take a look at 17 USC 106 for the main ones.
So, long story short: you are 100% absolutely wrong. Intent "willfully infringes" is KEY to this area.
Well, no. The earlier poster, and I, were both talking about civil copyright infringement, not criminal. The relevant civil statute is 17 USC 504; it's a strict liability statute. Naturally, I did know that there is also a criminal statute, and that it does require willfulness, but it's irrelevant for these RIAA suits.
And I love your argument: Take away the rights of someone to protect their property, don't worry about providing an alternative, make what is currently a crime not a crime and boom, the problem is solved.
Thanks, I like it too. Although I didn't really address criminal liability, I would decriminalize copyright infringement altogether. Patent infringement isn't a crime, and trademark infringement was only just recently criminalized (which also is a bad idea, IMO), so why should copyright infringement be? It's better as a civil matter. If copyright holders care, they can pursue infringers, and if not, they don't. Likewise, public money isn't spent on what is essentially a very private matter, and no great threat to public safety or order.
Prohibition supports the position that you can't just take some away someone's rights because they're just going to do more and more questionable things to protect that right (ie, collecting more and more information in a more and more questionable manner, root kits).
Well, no, not really. I don't think that anyone felt that we should repeal Prohibition in order to excuse gangsters from not only bootlegging, but also from bribery, murder, jury tampering, etc. Rather, it was because Prohibition was meant to promote morality, and wound up doing basically the exact opposite of that. While it is possible to use the law as a tool to alter social norms -- the norms of the Civil Rights era were generally pro-racism and segregation, and the law deliberately fought against that, as I said earlier -- it isn't something that should be done lightly. In the case of Prohibition, while it might have been possible to use the law to force people to go teetotal, there wasn't the will, and really, there shouldn't've been.
What is copyright like? Is it like Prohibition, a law with a noble purpose that is widely flouted and widely seen as too pointless to enforce against an unwilling populace? Or is it like desegregation laws, which have an especially noble purpose, but were strongly opposed, yet seen by very many to be worth fighting for to the death, and which were rooted in our values and ideals?
I think it's like Prohibition. Copyright is a decent idea, but not so supremely important that we should pursue it even when virtually no one respects it as it is typically applied. As with Prohibition leading to not just violations of the law in question, but also more important laws (e.g. laws against murder, jury tampering, etc.), there is a real risk of people becoming so fed up with copyright as it directly impacts them (e.g. banning mere file sharing) that they become opposed to copyright laws regarding commercial piracy, or the idea of copyright altogether.
The most people support argument has no basis. It's your opinion.
Maybe, but I am a copyright lawyer, and I've been interested in this field for a long time before I started practicing in it. I've observed not only people who are active in calling for copyright reform, but also ordinary folks who I know (family members, friends, other social acquaintances, etc.) that don't really pay much thought to copyright. My impression has been that while most people support copyright to some extent, they don't think that it really does, or should, limit their own behavior. That is, AFAICT, an average person will be opposed to commercial pirates printing up a bunch of counterfeit DVDs and selling them, but they don't see anything really bad about downloading the same movie over Bit Torrent, much less copying the movie directly from a friend, or ripping the mo
Eye surgery from Doctor Odin? Well, I'd suggest confirming with him that the procedure will make you extra wise. And frankly, I wouldn't suggest bothering with runes.
Slashdot Mirror
Well I do not think viewing something, as opposed to making a fixed copy of something, implicates the reproduction right.
That's the problem, basically. Computers are designed in such a way that it is basically impossible for them to do anything without making at least one copy in the process. Nothing can appear onscreen, or be heard through the speakers, or be transferred, or otherwise acted upon, without some kind of copying. It's just how computers work at a very low level.
MAI says that that's enough to potentially be infringing. The copyright parts of MAI are pretty short and easy to get through. Given how foundational it is for any kind of copyright case involving computers, and how influential it's been, it's worth a quick read. The Intellectual Reserve case I mentioned earlier is from D. Utah, but it's the logical outgrowth of MAI, and also is very easy to get through.
Others have identified a possible effect of MAI that's very disturbing. Let us say that Alice has an infringing mp3, which she listens to many times a day for several months. Each time she opens the file in order to listen to it on the computer, the computer reads the data from the hard drive, then copies it into the RAM (and possibly other places, depending on the precise architecture of the computer and what the OS is doing) to facilitate this. After she's done listening, the data is likely erased from RAM, etc., to make room for other data. If we treat each incident of copying the data into RAM as a separate infringement, then it is been suggested that it might be a criminal infringement per section 506(1)(B); Each listening could contribute toward the $1000 retail value total needed to trigger criminal liability.
Again, I'd say that you should look at MAI and cases built on MAI when you have a chance.
Oh, come now, Ray. I expect better from you.
The 9th Cir., in MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993) was pretty clear:
And MAI is a widely influential precedent. I don't recall having heard of any cases that looked at the same issue and came out otherwise. As I don't much care for computer users needing to rely on fair use for virtually everything (see, e.g. Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999) finding that viewing a web page, if making a copy in RAM as a necessary step in order to do so, can be infringing), I'd certainly like to see an on point case that disagreed with the MAI court.
No one has said that it is. I said that downloading, for example, is reproduction for copyright purposes. Whether or not that reproduction is infringing depends on other factors. I said as much in my earlier post:What is cut and dried is that downloading is reproduction, and likewise, what sorts of circumstances lead to that act being lawful or unlawful. You're conflating downloading and infringing, but you oughtn't. Maximalists sometimes propagandize along those lines, but even they know the score.
The musicians will figure it out first, just to get all the "illegal" songs out of the promotional channels.
The music industry hasn't figured it out yet, and frankly, I am dubious as to whether or not there is any viable solution that generally preserves the world of commercial music as we know it. I'd be interested to see one, but personally I'm proceeding under the assumption that the music industry cannot be saved, and that we'd better try to live with everyone engaging in file sharing, whether it is authorized, or unauthorized, legal or illegal.
The court may have decided that, but it is factually incorrect, indicating the court's severe lack of understanding of the basic physics of electronic information. Nothing is "fixed" in RAM.
"Fixed" implies permanence. Take a CD out of the player and the music is still on it. It is fixed. You cannot erase it, modify it, replace the data with something else, change the order of the songs, or even delete the contents.
Take the RAM out of a computer and try to retrieve the data. You can't. RAM is volatile. Any data that resides there is temporary and definitely not fixed.
Well, fixation again, is a term of art, which is defined in the statute. A work is fixed if it "is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." The MAI court said that since it is possible to perceive and reproduce the data fixed in RAM -- as must certainly be the case if it is working properly -- then it is sufficiently stable to qualify as fixed for copyright purposes.
After 40,000 cases, the courts are just now realizing that "making available" doesn't fly.
Well, it's actually a pretty novel question. Until recently, no one brought this up, either to claim that it was infringement or that it wasn't. Courts rarely raise issues on their own, so if no litigants brought it up, a court wouldn't even look at the matter.
As written, the law would seem to specifically exempt the copying of information that is not fixed -- simply because they could not imagine how you might do that when the law was drafted. They do not address the Internet, file-sharing, uploading or downloading. Nothing on the Internet is fixed. Most of it isn't even spelled properly.
More importantly, Congress has not taken it upon itself to modify the law to include these concepts since this became an issue.
Sure they have. Congress was aware of computer-related issues becoming more important when they were writing the 1976 Act and formed a commission (CONTU) to look into it and advise them. And Congress has even amended and written computer-related provisions of copyright law in light of MAI.
Can the Supreme Court address the controversy without a specific case?
No federal court can do so; federal courts do not issue advisory opinions. And no state court can do so, since copyright is exclusively in federal jurisdiction.
it would be nice if we could replace the semantics with actual laws that say whether file-sharing is copyright infringement and, if so, is it the uploader or downloader making the infringing copy, and all of the other basic questions that we have been debating about for years now, each of which are still open to litigation in every single case.
That was settled ages ago, with Napster probably being the leading case.
If you download a file, you, the downloader, are making a copy of the file on your computer, which may be infringing (if it's a copyrighted work, if you're unauthorized, etc.). If you serve the file to others, you, the uploader, are distributing the file, which likewise may be infringing. The latest issue was whether you had to make the file available to be served, or whether someone had to actually take advantage of the offer; the statute, and now caselaw, suggest the latter. And if you're providing the resources for this, such as creating the sharing software, providing the network, etc. then you may also be liable for the infringements of the users, depending on precisely what you've done. Napster was contributorially and vicariously liable, IIRC. Grokster carefully avoided that, but wound up with a whole new class of secondary infringement -- inducement -- that they were on the hook for.
Really, if you look into it, you'll see that the issues are fairly cut and dried. As such, I think that efforts to oppose the copyright maximalists would be most fruitful in Congress, rather than the courts. The former can make drastic fixes to the laws, but the latter have to deal with whatever the laws give them to work with.
You're wrong, I'm afraid.
The key is that the statute defines what a copy is, in 17 USC 101. Long story short, a copy is a material object in which a work is fixed. So a story is not a copy, for example, but a paperback book in which the story appears is.
In MAI v. Peak, a widely-followed case, the Ninth Circuit decided that when computer software was written to RAM in the process of running the program, this constituted the creation of a copy, since the RAM is a material object in which the work was fixed. This also means that when you download from someone, since the server obviously cannot send a tangible object over the network, the downloader is creating a new copy. Later courts have confirmed this to be the case, in opinions such as Napster, Grokster, and my favorite (for its clarity, not for the outcome), Intellectual Reserve v. Utah Lighthouse Ministry.
There is nothing to indicate that various temporary copies made in the course of downloading -- such as in the memory of routers -- would not be infringing. In fact, the law implies that it is, by providing a defense to ISPs that wouldn't seem to be all that necessary otherwise, at section 512(a).
What if I hang a painting in my restaurant? What if I put a statue in my corporate lobby?
It's not infringing to display lawfully made copies. See 17 USC 109(c).
What about tourists who take photographs of statues
That could be a problem for them.
and buildings?
That's typically not infringing. See section 120(a) (which itself usually doesn't need to apply, since most buildings aren't copyrighted anyway).
Can sculptors file a lawsuit for unequal treatment under the law, for discriminatory protection for different types of USEFUL arts, such as the different protections afforded musicians and sculptors?
First, copyrights don't deal with the useful arts; patents cover that territory. Copyrights deal with science, by which the framers meant general knowledge. Second, while an author could try that kind of an argument, I guess, they'd be pretty certain to lose, in light of Eldred, and given that sculptors (for example) are not a protected class.
Or can an artist who creates a statue which is placed in a public park place a camera on or in the statue and sue everyone who looks at the statue for copyright violation?
Neither looking, nor reading, nor listening, are infringements to begin with. See section 106 for most of the activities which are capable of infringing.
Do post card creators/vendors have to pay royalties for pictures of works of art on those post cards?
Depends on the art. For public domain works, e.g. the Mona Lisa, no. For copyrighted works, yes, if that's a part of the deal they worked out with the copyright holder. (It could just as easily have been a lump sum payment, instead of a royalty)
If any artistic creation goes into the public domain and anyone can use and re-use artistic works not of their creation for monetary gain, you would see less creation of works of art. Artists would still do their artwork because they need to scratch that creative itch, but their output would be far less frequent and the quality would probably be lower as they would not hone their technique as much because they are busy working day jobs.
That is possible.
However, please bear in mind the goal of copyright: to serve the public interest. The public has two specific interests with regard to creative works. First, it wants the greatest number of creative works, whether original or derivative, to be created and published. Second, the public wants works to be in the public domain, since those are the works that the public can make the greatest use of.
So merely saying that reducing copyright could cause fewer works to be created -- quality is irrelevant, since the copyright system has no means to judge quality, which is subjective anyway -- doesn't mean much, since you'd be gaining on the one hand and losing on the other.
The natural state of affairs is no copyright, which means we have a relatively small number of original works being created, a moderate number of derivative works being created (e.g. Shakespeare writing his plays by copying a number of earlier works), and the maximum in freedom with regard to those works. We can add up all of these public benefits and get a baseline. When we have copyright, we reduce the freedom we have as to works, in order to hopefully, but not inevitably, increase the creation and publication of works, particularly original works. Copyright is acceptable if it produces a net outcome greater than this baseline. Copyright is unacceptable if it produces a net outcome less than the baseline; that would literally be a situation where we'd be better off without copyright! The ideal copyright is the one that has the greatest net increase over the baseline.
Copyright is an economic incentive. It can't make an author famous, or scratch the creative itch; that happens regardless of copyright. All copyright can do is cause whatever money can be generated by exploiting the work to flow to the copyright holder, rather than be dispersed. It's not really perfectly effective at this -- some authors might ignore printing up a very small run of a work, even though there are a few customers, even though if the work were in the public domain, there probably would be a willing publisher.
We know that for the vast majority of works, there is no economic value at all. Of the tiny fraction remaining, the vast majority have almost all of their economic value realized very quickly after the work is published in a given medium. For example, a movie makes most of its box office receipts in the first week it's released in theaters, with each successive week having lower sales until finally it can no longer stay in first run theaters. This repeats as the film appears in second run theaters, on pay per view, in video stores, licensed for pay cable, basic cable, and broadcast TV. There are exceptional works that remain valuable over a long period of time, but they're incredibly rare.
The point of this is that not all increases or decreases in copyright are the same. Going from no copyright to one year of copyright would have tremendous incentivizing effects, and would probably be a net gain for the public. OTOH, going from one million years of copyright to one million and one years would likely not incentivize anything, but would harm the public, producing a net loss.
So while I do not advocate abolishing copyright (though I leave it on the table, since perhaps someday that would be the best option), and while reducing copyright could certainly result in the creation and publication of fewer works, as you suggested, that does not mean that it is a bad idea from the perspective of the public, which is the only perspective that matters. Going from our current li
I'm personally fine with his continuing to sell copies of his own work.
Just because a work falls into the public domain, that doesn't mean that he could not continue selling them. He just wouldn't have a monopoly on them. It's like patents: 3M invented sticky notes, and the patent expired, and now lots of people sell them, including 3M.
As for software copyrights, 5 years is just silly. By now Windows XP would be in public domain.
Why is 5 years silly? It's silly to have the copyrights last so long that the work, when it falls into the public domain, is so obsolete that no one would ever use it, and that it may no longer be portable to anything modern, for a lack of people still having the appropriate skills, hardware, etc. Software works age very fast before they are rendered effectively unintelligible. At least a newspaper from hundreds of years ago can still be read. Software from a few decades ago can be quite difficult to get running. This is why it is also imperative to require that software registrations include a full copy of the source, with sufficient comments and other information so as to aid a programmer having reasonable skill in the art to make changes to the program, port it, etc. Also why we must take all the steps we can to eliminate DRM.
If games are art, why can't they be copyrighted as such?
If paintings on the wall stopped working as fast as software tends to, we'd have the same problem. No one is saying software isn't a valid kind of art; just that there are practical issues that demand unusual measures. Maybe someday the software field will stabilize such that this isn't so important anymore.
So if I take a great picture... a company should be able to resell it for profit unless I have paid the money to send copies to a government agency?
Basically, yes. If you want a copyright, all you need do is step forward and ask for it. It will involve filling out a very brief, very simple form, so that we have your contact information (helps the company find you and make a deal), a bit of information about the work (title, date of creation), etc. It will involve sending in a couple of high quality copies of the work (so that there can be no doubt as to what works it is, specifically, that you want protected; so that the works can be preserved for as long as possible). And it will involve a very modest fee, to ensure that you're serious, and to avoid abuse; I'd be happy with as little as $1. (Cf. how tiny fees have been suggested as a solution to spam, which is ultimately a problem of it being essentially free to send emails in great volume. We don't need copyright spam.)
In order for there to be swift certainty as to what was copyrighted and what was public domain, the deadline should be, say, one year after first publication (where publication is very broad, including public performance) of the work, anywhere. So you couldn't sit on it for too long. It used to be upon publication, but lots of works these days are published basically immediately, and it seems to me that we shouldn't have the paperwork get in the way of that.
For unpublished works, there should be some automatic protection, but not a great deal, so as to encourage publication. Further, it should only subsist so long as there is an honest intent to publish (since if the author doesn't intend to publish, we may as well encourage third parties to publish it independently; better that someone does than no one) and only for a relatively short span of years, so that people don't sit on it (e.g. copyrighting letters written by one's ancestors centuries ago).
Copyright on creation makes reselling something you find a deny-by-default, which I think is a good idea.
Why? The public is better off, the more works there are created and published. It doesn't actually matter who publishes them, if the author isn't having it taken care of. Copyright should be opt-in, and third parties who act reasonably but nevertheless infringe should be let off the hook. A registration system, meanwhile, coupled with notice attached to the works, is a good way to make sure that people know that the work is copyrighted, and don't reasonably infringe.
I also do not agree that companies should be unable to hold copyrights.
I agree with you. Authors should be free to assign copyrights as they see fit; they are not children, and we need not act paternalistically toward them. If they want to assign them to a corporate entity, then so be it. Indeed, I have no qualms about abolishing termination of transfers and liberalizing the work made for hire doctrine along these lines.
When it's released, it sells well. As it gets older, the demand for it drops off. So... the older it gets, the less money it makes, the more you have to pay to protect it.
Yeah, I've never really cared much for the progressively increasing renewal fees, either.
However, having renewals is quite important, and is an age-old feature of copyright. The logic behind it is this: Copyright is meant to incentivize authors to create and publish works, because the public benefits from an increased quantity of published works. Authors who would create and publish anyway, without the extra incentive of copyright, shouldn't get copyrights, since it would be wasteful. (Like having bids for a government contract, and then offering to pay more than the amount of the winning bid, for no reason) Well, just like copyright as a whole may not be necessary to incentivize the creation and publication of all works, the maximum length of copyright may not be necessary for all works. Some authors may be willing to accept a 5 year copyright, and others will require a 25 year copyright. With renewals, and relying on the authors to self-identify, since we can't read their minds, the former will likely stop bothering to renew after 5 years, while the latter will be likely to renew.
This means that the public gets works created and published that otherwise would not have been, by offering copyrights, but gets the works in the public domain sooner than they might if they indiscriminately offered too much copyright all the time.
Everyone wins: the authors get as much copyright as they want (up to the maximum) merely by registering or renewing periodically, and the public gets the most works created and published and in the public domain as rapidly as possible.
So if the Melvins put out a new album, could afford the copyright for 10 years and then at year eleven, you have people grabbing the songs and slapping 'em on compilations and selling them for cheap and the band sees none of that money... that is somehow right and justified?
Yes. In an ideal world, authors would create and publish as much as possible and the works would be in the public domain from day one. Copyright is at best a useful evil, but it's never inherently worthwhile. So long as it produces a closer net outcome to the ideal than if we didn't have it at all, it is tolerable, however.
Similarly, could Tolstoy have written Anna Karenina or War and Peace over the course of years without copyright to ensure his lifestyle was sustainable?
That's not the best example, given that Count Tolstoy was a wealthy aristocrat, who probably didn't depend on copyrights to keep him from starving. Also, while I do know that Russia had some kind of copyright laws at that time, how much they would be worth to an author in the mid-19th century depends a lot on precisely what those laws were, and how the publishing industry and economy of the era worked.
The thing is, pre-Anne copyrights protected publishers and/or were tools of official censorship. They may have been called copyrights, or were copyright-like, but they were not really copyrights in the sense of what we think of today.
For example, under the Stationers' Copyright, a particular printer might get a copyright to print Virgil's Aeneid in the original Latin. It didn't matter that it was written by someone else, over a thousand years prior, and that he had no special permission from the author. Rather, the printers colluded and divided the market up so that they did not compete directly against one another, and could keep prices high. Authors didn't really participate in this.
In 1710, long after Shakespeare's time, England set up the first modern copyright system, where the system was intended to serve the public interest, and the rights were vested in authors, rather than publishers. The publishers didn't like it, but have learned to live with it.
This was discussed on that page, btw. Perhaps you should've read more of it.
Not all copyright infringement is a crime, but some is. See 17 USC 506 and 18 USC 2319. N.b. that some copyright infringement has been criminalized since the late 19th century, in the US, so it's not a new thing.
You point is not proven, since the conflict did exist in the 19th century
It was solved by the US opening the copyright system to foreign authors, provided that they complied with our formalities. We had this working perfectly well, without bothering with Berne, for about a century. I don't even propose reviving the manufacturing formality, so it would actually make things even easier than it was before.
This being said, I agree that registration is probably a better system, now that the internet will allow it on a global scale.
Provided that best copies are still mailed in (where they are not in some machine readable form natively), I have nothing against allowing registration online. Online trademark registration is very convenient, and this would lend itself to a better online system for copyright searches. Putting the entirety of the public domain LoC collection online as well, would also be desirable, and perhaps helped out by this.
However, do bear in mind that copyright is national, not international. Even Berne just deals with the minimum standards and national treatment that each nation must implement. The last thing we need is one copyright law for everyone. It's better for each country to have its own laws, which are fine-tuned to serve their own people. I see no point in them being uniform, or having any minimum standards, aside from the aforementioned unilateral national treatment and informal cooperation to avoid mutually exclusive systems that would keep authors from having copyrights in certain jurisdictions, had they opted for copyright in others.
Don't throw out the baby with the bathwater.
That's the problem with Berne and TRIPS. They've tied the baby and the bathwater together (not that there's really much that's worthwhile in either) with the idea that since no one would give up the former, they could greedily push through the latter. The thing is, the latter's become so damn onerous that it has encouraged many that the former just isn't worth the trouble any longer.
Not such a good idea anyway. The U.S. benefits far more from international harmonization than anyone else.
Yeah, but the US is big enough that we can get away with it. We've been outside of Berne before, and there's enough dissatisfaction with these (quite a bit of it caused by our own USTR) that if we adopted an isolationist, unilateral policy, others would likely follow. My main point is that I don't want minimum standards, and I don't want the hassle of reciprocity, but I do want national treatment. If some country out there is happy with life+50, then good for them. I won't tell them what to do. But I don't want that here.
On top of that, TRIPS is not self-executing.
Yes, but you can easily get into a fix with the President and the Senate binding the US, even if the House doesn't want to support the enabling legislation. They didn't; the whole system failed, but it was still a deliberately sneaky thing to do, and the tactic continues to be employed.
Participating in the established process
There is no established process. The terms never go down, and Berne never gets better. Cutting the Gordian knot is the only way.
Well, I guess it's a good thing then, that I fully support granting national treatment to foreign authors, regardless of whether or not their countries return the favor! Not once did I suggest that we not grant copyrights to foreign authors; I just said that the foreign authors need to register their works exactly the same as our domestic authors.
Whether or not a particular author seeks a US copyright, regardless of his own nationality, is up to him.
Further, let's bear in mind that unregistered works, would merely be public domain works, the same as works on which the term has lapsed. Right now any publisher can put out copies of public domain works, rather than pay for copyrighted works to publish. Yet, they tend to prefer to publish the latter! This is because copyrights are really of little direct value for authors, but are tremendously valued by publishers, since they don't like to have to compete with one another over the exact same material. So you would not see a flood of unregistered public domain works being published instead of copyrighted works (regardless of nationality, see above) because it's really not in the publishers' interests to do so. A few might pursue that as a niche, but that's it.
Since the US didn't have automatic copyrights for anyone until quite recently, our own history from 1891 -- when we began to grant copyrights to foreign authors who complied with the required formalities -- proves the point.
Oh yes - creative artists don't get [pensions]...
That depends on their arrangements with their employer, if they have one. No one is preventing it, but I'd agree that it is not common practice, when possible.
Still, a copyright is not a substitute for a pension. Only a small minority of copyrights have any economic value whatsoever, and of those, the vast, vast majority have most of their value only for a brief time after publication in a given medium. The length depends on the type of work; a daily newspaper has a window of a few hours, a movie in the theaters has a few weeks, a novel has perhaps a year.
Only the tiniest, tiniest number of works have long-lasting economic value. The odds of creating one are on par with winning the lottery. I don't think that anyone would ever suggest that people should play the lottery, rather than invest wisely, or getting a pension, etc.
If an artist is concerned about providing for himself in his old age, or for his family, he should consider whether or not he ought to stay an artist at all; if he can't make money, he really ought to consider a different career. If he does make money, he ought to make careful investments, rather than spend it all, expecting a permanent windfall. He ought to support social welfare programs, as a safety net in case he does run into big financial problems.
An artist who expects to get paid decades later may often find himself disappointed, simply because the audience isn't there. A pension should be more reliable than that.
So if you're going to promote copyrights as a boon for artists, please be realistic about it.
We can't require registration even if we want to.
Sure we can. We simply withdraw from the onerous copyright treaties. And let's remember, these treaties were used to do an end-run around the proper legislative process in the US; instead of open debate amongst representatives who have to answer to their constituents, we got a fait accompli.
Remember, Berne et al requires the intolerable life+50 copyright term as a minimum (the US is currently at life+70). All those people who want shorter terms than that must necessarily support their country withdrawing from these treaties. So the anti-treaty sentiment is stronger than you might think.
Personally, I have no use for copyright treaties of any sort. I would like the nations of the world to individually adopt unilateral national treatment, and to informally cooperate so that there are no conflicts which are so great that an author could not have copyrights in two different jurisdictions due to the clash of laws. Other than that, which requires no treaty, we're best off with each country doing its own thing.
...times 163, presumably all different and most in foreign languages if you want the same copyright protection as today.
Yes, that's right. Copyrights exist to cause authors to create and publish their works so that the public domain can be more enriched than it otherwise might be. However, if an author in country A simply doesn't care about -- i.e. wasn't incentivized by -- a copyright in country B, then why would it make sense for country B to give him the copyright? If it was important to the author, he would pursue it. If it is not important to him, he'll ignore it.
If the author apparently doesn't care, why should I? And since the author seems to have been sufficiently incentivized by something else (possibly country A's copyrights, possibly something else altogether unrelated to copyright), it would be pointless to give him a copyright. It would be liking paying for something that's being given away for free!
I am in the US, and I am really only interested in the US reforming its copyright laws. Since the US is a large market for many works, I have no doubt that very, very many foreign authors will register for copyrights, just as our domestic authors will. And if they're uninterested, then why give them what they are unwilling to get themselves? Maybe it will result in the work being made more popular here than it would be by an author who ignores the US market. That's a plus. And if nothing comes of it, then there's really no harm, and there is still the slight benefit of the work being available if that changes, which is unlikely.
I would like to point out that I'm not playing favorites here; I think that the US should unilaterally offer national treatment. That is, we should permit foreign authors to get copyrights on exactly the same basis as US authors, with completely identical treatment. Further, that we should do so, regardless of how foreign countries behave toward us. After all, the mission of copyright is to spur the creation and publication of works in order to get them, unencumbered, into the hands of the public. The nationality of the author is quite irrelevant. Ditto for the language of the form; let there be Spanish and French and Arabic and Chinese forms as well, with enough translators at the Copyright Office to process them.
I would hope, of course, that other countries would follow our example and also unilaterally grant national treatment to foreign authors. I'm not too worried about it, though. Remember, the US did perfectly well with not being a member of the Berne Convention (which sucks, btw) until 1989. In fact, joining it (and the ramp-up involved) is the source of many of the ills we currently suffer!
Meanwhile, I'd like to point out that, AFAIK (I'm not a patent attorney), there is no reciprocity in the patent system. An inventor has to file for a patent in the US, if he wants rights there, in Japan, if he wants rights there, etc. having to deal with the local rules, which can vary wildly, retaining local experts, etc. A registration formality for copyrights would be a piece of cake, by comparison! I can't imagine the paperwork being difficult (name of author, title of work, etc.), and the various national post offices seem to have international mail under control, so deposit would be no problem. Unlike with patents, authors wouldn't need to hire local lawyers to handle the registration (though I wouldn't mind if they did, being a copyright lawyer myself!), and with the falling US dollar, what is a token fee here is likely even less of a hurdle for many foreigners.
How is this bad? It means that if someone from Pottsylvania writes a book for local consumption, and never bothers to register it with the US, that it is in the American public domain, but does that harm him? No, not really; he was ignoring the US anyway. And if someone else does use the book, say, as the basis for a movie, well then at least something productive happened, instead of the author allowing it to rot on the vine. The author isn't being forced, he isn't bei
That's basically right, and it's a good thing. Registration is traditional in the American copyright system, and we have not been without it for very long; just long enough to see how awful automatic copyright grants are. So long as copyright registration is but the most minor of hurdles (contact information for the applicant, a couple of copies of the work for the Library of Congress, a token fee), it will serve to make the copyright system available to help those who want it, while letting the public benefit from the works of authors who don't care about copyrights in the first place. There's no down side.
That having been said, I'm not a fan of this particular bill. Shorter terms, non-automatic renewals, and timely registration as a prerequisite for copyright are much better, even though they'll take more work to achieve. I'd rather pursue that directly, rather than waste time on these mediocre reforms.
Well, although my normal policy is to continue to discuss issues with anyone for so long as they're willing, and we're both able to, I think I'll decline here. If we were ever having a civilized discussion on this subject, it seems to me that you're not holding up your side now. You're not supporting your position -- particularly in the context of RIAA file sharing suits, which was the topic at hand -- and you're getting into attacking me personally, which is interesting, as you're doing so anonymously. You're free to, of course, and I defend your right to do so, but I do find it distasteful, especially with my pseudonymity having been brought into play. On the plus side, I can be pretty sure that I am not acquainted with you offline.
Against my better judgment, and with the caveat that I won't bother to read it or respond to it, let me ask you to answer a simple question directly, and with specific citations: Alice creates a nondramatic musical work and a sound recording of that work, registers their copyrights, and publishes them in the form of phonorecords. While the works remain in term, and lacking any sort of license, Bob then rips a copy of the phonorecord to his computer, and offers the files for others to download from him. Carol downloads the files from Bob to her own computer. Did Bob and/or Carol infringe Alice's copyrights? If so, would their mens rea matter? Again, if you answer, and I'd like it if you did, please precisely cite the relevant authority re: mental state, and which level of mental state, e.g. willfulness, recklessness, etc., is the least required.
Well, you did catch me making a blunder. I cited 17 USC 504, which deals with computing damages, not with determining liability. Mea culpa. The correct statute is section 501, which is the strict liability statute. I really don't know what I was thinking.
Still, to fully correct my mis-cite, I should point out that the mens rea in section 504 does not mean that civil copyright infringement is not a strict liability statute. 504, again, deals with the amount of money awarded; a whole different kettle of fish. So while an infringer's mental state is irrelevant for determining whether or not he is liable, it may sometimes be relevant for determining how much he will owe as a result.
Of course, it is largely up to the plaintiff, whether or not the defendant's mental state will ever be relevant. If the plaintiff opts for actual damages and profits, instead of statutory damages, mens rea is irrelevant. If the plaintiff ignores the money altogether (perhaps he just wants an injunction), then mens rea is irrelevant. And if the plaintiff only seeks the absolute minimum amount (currently $750 in the vast majority of cases; other prerequisites must be met to lower it to the $200 limit, and it is highly unlikely in an RIAA case. See 17 USC 401(d) for why.), then mens rea is irrelevant since the "innocence" of the defendant can't make it go lower, and thus isn't examined at all. RIAA has been known to do this, IIRC, in order to remove issues that could perhaps make it in front of a jury sympathetic to the defendant.
Anyway, 501, not 504, for the elements of civil copyright infringement. In my defense, I was posting at around 1 a.m., after a long day and a nice party.
Incidentally, I fear that you, like many laypeople, think that lawyers get sanctioned or disbarred trivially. We don't. You'd have to really screw up in an amazingly bad way for that to happen. Usually it involves malfeasance, and the most reliable method is to steal money from a client. Stating a correct point of law, or even doing so with a mis-cite, here on Slashdot, would simply not register at all, absent perhaps some really bizarre circumstances that I can't even imagine at the moment.
I was at a party. I have a life outside of Slashdot, you know. And indeed, with my work schedule, I'll be posting less for a few months.
Anyway, given an ad-lib lecture that is not being simultaneously recorded and transmitted elsewhere, it's probably uncopyrighted enough that anyone can take notes and either have those notes be copyrighted (if the note-taker is being creative with them) or uncopyrighted (if they're uncreatively writing down everything that is said). Adding one of those two elements in, though -- reading a pre-written lecture from notes, or a sufficient simultaneous recording -- complicates matters.
In the event that there is a copyright, students are likely to rely on fair use. I leave the fair use analysis to the reader (I have another engagement I need to go to), but I expect that it would be fair use for a student. A business, OTOH, has greater difficulty with the fourth factor, though n.b. that commercial fair use is possible and commonplace (see Campbell v. Acuff Rose), and that the issue isn't whether the infringer makes money, but more whether the infringement impairs the copyright holder from making money. If the commercial notes themselves are not published, and are only used for purposes of preparing a restatement of the uncopyrightable ideas in some non-infringing manner, then this further aids the commercial user in the analysis.
Copyright is NOT the right to sell; it's the right to distribute.
No, it's a bunch of different rights. Take a look at 17 USC 106 for the main ones.
So, long story short: you are 100% absolutely wrong. Intent "willfully infringes" is KEY to this area.
Well, no. The earlier poster, and I, were both talking about civil copyright infringement, not criminal. The relevant civil statute is 17 USC 504; it's a strict liability statute. Naturally, I did know that there is also a criminal statute, and that it does require willfulness, but it's irrelevant for these RIAA suits.
And I love your argument: Take away the rights of someone to protect their property, don't worry about providing an alternative, make what is currently a crime not a crime and boom, the problem is solved.
Thanks, I like it too. Although I didn't really address criminal liability, I would decriminalize copyright infringement altogether. Patent infringement isn't a crime, and trademark infringement was only just recently criminalized (which also is a bad idea, IMO), so why should copyright infringement be? It's better as a civil matter. If copyright holders care, they can pursue infringers, and if not, they don't. Likewise, public money isn't spent on what is essentially a very private matter, and no great threat to public safety or order.
Prohibition supports the position that you can't just take some away someone's rights because they're just going to do more and more questionable things to protect that right (ie, collecting more and more information in a more and more questionable manner, root kits).
Well, no, not really. I don't think that anyone felt that we should repeal Prohibition in order to excuse gangsters from not only bootlegging, but also from bribery, murder, jury tampering, etc. Rather, it was because Prohibition was meant to promote morality, and wound up doing basically the exact opposite of that. While it is possible to use the law as a tool to alter social norms -- the norms of the Civil Rights era were generally pro-racism and segregation, and the law deliberately fought against that, as I said earlier -- it isn't something that should be done lightly. In the case of Prohibition, while it might have been possible to use the law to force people to go teetotal, there wasn't the will, and really, there shouldn't've been.
What is copyright like? Is it like Prohibition, a law with a noble purpose that is widely flouted and widely seen as too pointless to enforce against an unwilling populace? Or is it like desegregation laws, which have an especially noble purpose, but were strongly opposed, yet seen by very many to be worth fighting for to the death, and which were rooted in our values and ideals?
I think it's like Prohibition. Copyright is a decent idea, but not so supremely important that we should pursue it even when virtually no one respects it as it is typically applied. As with Prohibition leading to not just violations of the law in question, but also more important laws (e.g. laws against murder, jury tampering, etc.), there is a real risk of people becoming so fed up with copyright as it directly impacts them (e.g. banning mere file sharing) that they become opposed to copyright laws regarding commercial piracy, or the idea of copyright altogether.
The most people support argument has no basis. It's your opinion.
Maybe, but I am a copyright lawyer, and I've been interested in this field for a long time before I started practicing in it. I've observed not only people who are active in calling for copyright reform, but also ordinary folks who I know (family members, friends, other social acquaintances, etc.) that don't really pay much thought to copyright. My impression has been that while most people support copyright to some extent, they don't think that it really does, or should, limit their own behavior. That is, AFAICT, an average person will be opposed to commercial pirates printing up a bunch of counterfeit DVDs and selling them, but they don't see anything really bad about downloading the same movie over Bit Torrent, much less copying the movie directly from a friend, or ripping the mo
Eye surgery from Doctor Odin? Well, I'd suggest confirming with him that the procedure will make you extra wise. And frankly, I wouldn't suggest bothering with runes.