Patents don't protect ideas, they protect inventions. Ideas are unpatentable, and a dime-a-dozen anyway. Patentable inventions are at least sufficiently refined to have been reduced to practice, useful, novel, and nonobvious.
Compare, say, the idea for practical fusion power (literally, that's it: 'There should be practical fusion power') with a copy of the plans for a practical, working fusion reactor, and lots of supporting documentation to show that it is viable. Which do you think the PTO will issue a patent for?
I'm afraid you've got it wrong, but at least you're on the right track. Incidentally, here's a major downside to the term 'intellectual property': it's vague and confusing, and you've fallen into that trap.
A copyright, for example, is not the same thing as the creative work to which the copyright pertains, nor is either of those the same as a copy in which the creative work might be fixed. A copy is certainly property. A copyright is arguably property. A creative work is certainly not property.
Ultimately, property is that which is capable of being used and enjoyed by the owner, lent to others and recoverable, and which the owner can dispose of (either by selling, or by destroying). While a creative work meets the first requirement, it cannot meet the other two (outside of extreme and unrealistic situations), largely because it's nonrivalrous. A copyright, at least, can.
However, there are non-rivalrous goods out there in which we attach property rights.
Offhand, I can't think of any. Your easement example doesn't work. The easement is very large, but it is finite. If the entire population of the world was playing golf that day, and everyone hit their ball onto that lot, you'd have a hell of a time if they all decided to retrieve it simultaneously. If the easement were truly non-rivalrous, it would be no problem at all.
IP resembles real or personal property a lot more than it resembles anything else.
Again, it depends on what 'IP' means. As a lawyer who practices in copyright and trademark, I assure you, the term is so vague, so meaningless, so deliberately confusing, that I have no idea of what people mean when they say it. I don't even use the term at all myself, save to point out why it shouldn't be used.
If you want to talk about copyright, say so. Ditto, patents, trademarks, trade secrets, publicity rights, etc. They're all different, they're all unrelated, and they're not going to be less so just because of a made-up umbrella term.
That would cover the music, but not, apparently, the sound recording or the video (if it was being reused, as is the case in AMVs).
Let me propose something a little broader, but more useful: Any action engaged in by a natural person, if not for commercial gain, is not infringing. Notwithstanding this, secondary liability based upon such acts should remain actionable, except where the secondary infringer is a natural person, and the acts giving rise to secondary infringement are not for commercial gain.
The effect of this, given a reasonable definition of commercial gain, would be that people could do whatever they liked with works, so long as they didn't sell them, or trade them for anything (including other works), or use them as a draw for advertising, etc. So no sales of pirated copies under this section, no ratio-based pirate sites, no ad-supported torrent trackers (which would be secondary infringers).
And since this would only be one exception, other, independent exceptions, such as fair use would still be available.
Well, I'd want to look it up to be certain, but I suspect that the ASPRIN mark (and the HEROIN mark, also one of Bayer's) were caught up in WW1 and this hastened their going generic. ASPRIN is still protected in some jurisdictions, IIRC.
There are other, better examples in which the seizing of foreign assets during a war don't play a role. Thus, I don't invoke the ASPRIN mark much.
You mention survey evidence, is that actually a benchmark the courts would use to determine the protectability of the trademark?
Oh yes. Surveys are commonplace evidence in trademark cases. Of course, you have to construct the survey correctly, and it's a pain in the ass to do. A flawed survey loses cases. Remember, a trademark is meant to serve the public by indicating that goods so marked share a common origin, so that the consumer can anticipate an identical level of quality among marked goods. (E.g. one can of COKE-brand coke should taste the same as another. Whether it's good or bad is irrelevant, so long as it is consistent.) It's all about consumer understanding. If consumers think that the mark indicates that the good comes from a particular source (they don't have to know the source) and that all so-marked goods come from that source, then the mark functions. E.g. LEVI'S jeans are jeans from the Levi's company; LEE jeans are from a different company. But if they were just marked JEANS, then they could be from anywhere, since JEANS are what the product is, not an indicator of where it comes from, to distinguish it from other similar goods.
Surveys are a common way of sussing out what is in the mind of the consumer.
Incidentally, there was a big trademark case some years back with the MONOPOLY mark, and ultimately Congress had to intervene or the mark quite possibly would've been lost.
There are LOTS of different boards one could create.
The problem is that the Scrabble board isn't very creative. It is extremely stripped down, and there aren't many boards one could create that are simple and straightforward.
This is particularly so, since the rules (and scenes à faire doctrine; I misspoke earlier when I said roman à clef) sharply limit the creative choices available. The rules dictate a 15x15 grid, so that's not a creative choice. The game is a crossword game, and convention has a grid of squares, so a grid of squares and square tiles are not creative choices. The rules dictate a specific arrangement and number of special scoring squares, so that's not a creative choice. The Scrabulous board has no text written on it, so that wasn't copied and isn't at issue. Ditto for the more creative elements on the perimeter of the Scrabble board. The colors are all you've got to make a case with! And even there, the argument for using some basic colors and shades of those colors is a good one, so all you're left with is the choice to use red and blue!
I would not want to have to make the plaintiff's argument.
At worst, the board then is a derivative work of a particular set of rules governing a particular conception of the idea mentioned above. The merger doctrine does not make a work unprotectable because its based on an idea: every expression is based on an idea.
The board is an expression of some of the rules. The size of the grid expresses the 15x15 rule. The placement of scoring squares expresses the rule regarding their placement. There's no way you can say that they haven't merged with the rule.
Remember the merger doctrine? Where the expression and idea are merged such that affording protection to the expression would in effect confer protection to the underlying idea, neither is protected. Anything unoriginal may be copied. Remember how facts and other noncopyrightable elements can be plucked from any source whatsoever? The same applies here. And there are some other, similar doctrines, e.g. roman à clefs.
A graphic work may be protectable, but the nonprotectable elements that appear within it are not, and may be copied freely.
In the case of a scrabble board, we have: A board which is 15 by 15 squares. This is defined by the uncopyrightable rules of the game, and may be copied. Some squares, in certain locations, have special attributes (e.g. double word score). This is defined by the rules, and so the attributes and locations of these squares may be copied. Designating these squares by some means is an idea, and is uncopyrightable. A specific means for doing so may be copyrightable, if sufficiently creative. Coloring the special squares doesn't seem particularly creative to me. While the choice of colors -- red and blue -- may be creative, the use of different shades of those colors likely is not, where the attributes are related (e.g. double letter is a shade of double word). Also, where we're looking at a mere three colors (the board, and the two base shades), it seems likely that merger would apply, since there's a very finite number of basic possibilities, especially where extrinsic factors that limit creativity come into play, such as what color combinations look good to the average player.
Finally, there is the utility doctrine. Where a graphic work is useful, and where that use is inseparable from its appearance, there is no copyright. Here, we have a totally functional game board meant for playing a game on, aligning tiles, indicating the scores of words or letters placed at certain spots, etc.. It is highly utilitarian, and lacks separable ornamental features. This would likely be yet another reason to deny copyrightability on the game board art. Cf. with other games, such as Candyland, which has a very decorative board that has many non-useful features.
I don't dispute that you are a lawyer, but there is more to copyright law than most people outside the field realize sometimes.
Actually, I disagree. I suspect that SCRABBLE, while an arbitrary mark originally, has become generic over time.
The key is this: a trademark is only protected so long as it remains distinctive. This means that in the public eye, goods that the mark is applied to must be seen to come from a common source, whether or not that source is actually known, as opposed to goods not so marked, even if they are identical.
For example, if I have two bottles of absolutely pure water, and one is marked as FOO, and the other is marked as BAR, a consumer can prefer one brand over the other, and rely on bottles with one mark to come from one source. If the Bar company starts shipping water with the FOO mark, then that's trademark infringement, since they're confusing customers as to where a FOO-marked bottle comes from.
But if I just had a bottle labeled WATER, then that doesn't work as a mark, since it describes the product itself, rather than the source of the product. Anyone can use marks that describe _what_ a good is, but the only protectable marks are the ones that serve to indicate _where_ a good originates from. You don't have to say specifically who the originator is (e.g. the name of the bottler or water source), just so long as the customer can expect all similarly-marked goods to have a common origin.
The problem with SCRABBLE is that I think that in the mind of the public, SCRABBLE describes the game itself. If this can be shown -- typically through survey evidence -- then the mark is generic and not protectable. It's only protectable if the public thinks that a game with the SCRABBLE mark attached is actually a SCRABBLE-brand crossword game, as opposed to some other brand of identical game.
It's just a hunch, but I bet most people think that the game in question is called SCRABBLE, no matter who makes it, just like chess is chess, and checkers is checkers. I think it's a generic name. This is always the danger with successful trademarks; too much success can result in the public overassociating the good and the mark, and that kills the mark. Examples: THERMOS, ELEVATOR, ESCALATOR, TRAMPOLINE, etc. KLEENEX and XEROX are always right on the edge, and SANKA was for a while too (until the generic term 'decaf' became more popular).
No, you've got it backwards. The law prioritizes preserving the public domain status of noncopyrightable elements over whatever else might be copyrightable; thus, whatever copyright there could be on the board artwork, it doesn't cover the arrangement of the squares on the playing field. And if you cannot separate the two, then it would all be uncopyrightable. Copyright is never allowed to cover uncopyrightable material.
Harassment is words, conduct, or action (usually persistent) that annoys with no legitimate purpose.
First, there needs to be some intent to harass, rather than to just engage in the conduct. Second, there is a legitimate purpose: to advertise goods or services.
If it were legitimate advertising or marketing, companies would not have problems being associated with it
No, you can have disfavored but legitimate things. Businesses could surely pay to paint logos or slogans on the bodies of strippers as a means of advertising, but they don't, probably because the public backlash against it (assuming that we're talking about a business not already in the sex industry) would be more than the possible gains.
Spam has an unsavory reputation. This doesn't mean it is inherently not a legitimate means of advertising. Nor does that mean that all spam is inherently legitimate; just that some uses of the medium can be legitimate.
A spam bot doesn't know if you're reading your inbox, either, but the difference is that the spam bot doesn't know or care if it's got a real inbox or not.
If it's not a real inbox, then where the hell would it go? Either to nowhere, in which case, why do we particularly care, or someone is collecting misaddressed mail, which they're hardly obligated to do. So long as you pay the postage, I would suspect that the USPS doesn't care if you send mail to nonexistent addresses. They'll either return it as undeliverable, or if that isn't possible, it'll go to the dead letter office. So I doubt that you have to 'get a house' in that sphere either.
because you don't have approve it before it costs you bandwidth and occupies your server space.
But you did approve it, by allowing unsolicited inbound mail in the first place. The consent is presumed by default, but it's still there. Just as if you have a house, you are presumed to consent to people knocking on the door; if you have a phone, you are presumed to consent to people calling you; if you have a mailing address, you are presumed to consent to people mailing you. It is your job to rebut that presumption, either with actual notice (specifically telling individuals to stop) or constructive notice (putting out a sign so that people don't even bother trying). This is just how our society operates.
If 400 people a day randomly dialed your desk phone and it was a widespread phenomenon, you can be damn sure there'd be legislation about it.
If 400 people a day randomly dialed my phone in order to sell me something, I would call that phenomenon telemarketing, which would be kind of funny, since that's what everyone else already calls it. And we would have a law about it, and the law would say that it is legal, but that if I don't want it, I can always engage in constructive notice by signing up for the DNC list.
I don't mind a Do-Not-Spam list, though I don't think it would work at all.
Yeah, there was. It was called interrupting them and demanding not to be called again.
No, that's actual notice. It's like telling each door-to-door salesman to go away, after he has knocked. The DNC list provides constructive notice, like putting up a 'no solicitors' sign in the yard.
Email needs a solution. Requiring bulk licenses or express invitation would do it.
It would also be unconstitutional; people have a right to talk at you, they just don't have a right to force you to listen. Try again.
My email inbox is not a public forum. Spam does not have a right to be there uninvited.
I agree. If it was a public forum, then spammers would have a right to put spam in your inbox, whether you liked it or not. Happily, this is not the case. Instead, it is a private forum, which is fully under your control, but which you have chosen to open up to spammers by your willingness to run or patronize a mail server that accepts unsolicted inbound mail from strangers. Spammers have a right to send spam to a server. The owner of t
I believe that an economy of micro-transactions (a scaled up AdSense, if you will) based upon copyrights on any and all user created content and funded through advertising, would be a more compelling future than one where content was placed in the public domain unless copyright was explicitly sought by the author.
Why? First, you're throwing money at authors who don't appear to need it, and took no steps towards so much as asking for it. That's wasteful. When someone gives you something for free, why not let them? Second, there's no real assurance that microtransactions work. It's been a pie in the sky idea for well over a decade now. Third, especially why would it work if funded by advertising? I for one, despise unsolicited advertising in all its forms, and use filters to get rid of it whenever possible. And I certainly would bemoan the idea of yet more ads plastered in every nook and cranny.
Opt-in copyright, OTOH, has a long and successful history. It works, we know it works, and for most of the time that we have had copyright at all, that is what it has been. The current era of copyright is the aberration.
Unless you'd accept something like an artificial life simulation using the properties of emergence to model the various actors involved?
Unconstitutional? In what world? Better yet - are you arguing that it's wrong?
Yes. A blanket ban is unconstitutional and wrong.
That people should be permitted to consume all of my company's toner and paper supply on a daily basis because they want me to take advantage of their training seminars or low cost vacation packages?!?
You're the one permitting them. It's not as though a DNC list is impossible or impractical. It's not as though there aren't fax machines that just store inbound faxes as data, rather than printing them out, or which can block various numbers. If you want to have a fax machine that accepts unsolicited faxes, then don't get upset when it does. If you don't want it to, then it is your problem. I can put up with a government-run DNC list to assist you (though really there should be something built into the handshaking protocol) but a blanket ban goes too far.
N.b. that I hate all unsolicited advertising; I block text ads on Google, and banners on every website I go to. I skip over commercials, and if someone had augmented reality glasses so that I could block out ads in the newspaper or on billboards, I'd be overjoyed. So don't misunderstand me. I think that these guys have rights to send, though to not force you to receive, just as Nazis have a right to march down the street. It doesn't mean that I like it, or that I want it to happen. I just think that free speech means that we're stuck with it.
An email address is not like a postal address. I would contest any finding that says a spammer can harass you without your having consented to it.
Sending spam is not the same thing as harassment. It's just an inconvenience. Harassment implies some sort of malice. Outside of outright fraud (e.g. a confidence game) it doesn't seem to crop up much in spam, IME.
But there, the individuals are canvassing a specific area on a street of homes with doors. They know you're there because they can see you, not because they walked up to a particular spot, knocked in thin air, and happened on a door.
Well, they don't know you're there. I bet they get a lot of houses with no one home. While guessing at email addresses is a bit extreme, I think that it ignores the issue of harvested addresses, which is more pressing. Anyway, you're merely describing wardialing, except that instead of merely scanning what's out there, you're earnestly hoping a human being will get your message. AFAIK, that's not illegal. So why should it be here?
That's precisely the point, though. There is no way for you to exercise your own right to exclude effectively, because the spam comes regardless, and my personal email inbox is not a public forum. There is no way to set up a notice system that says "no bulk solicitations"
Well, there is: you can have the notice in the email address itself, or better yet, in a form that breaks the email address whenever it is posted, so that some human has to either manually see the notice (in order to remove it) or has to make a regex, which I think would suffice for constructive notice. It's just not a very good system.
Anyway, there wasn't a telephone equivalent either until the DNC list was created. So here's a big problem: figure out a technical solution to the notice question. I bet you could do very well for yourself if you can manage it.
I do not believe might right to privacy and non-harrassment is in equipoise with a spammer's right to speak to me without permission, and I do not believe it fundamentally constrains their right to speak to limit their speech to them getting either (a) a bulk-license from a mail domain operator or (b) specific permission (by mailing list signup or what have you) from the individual.
I disagree. Sending an email to you, in the hope that it will arrive, does not pierce your sphere of privacy one iota, unless you go and open a big hole in it by accepting emails from anyone who sends them to you. If you don't want spam, then don't use email; no spammer could ever invade your privacy then! But when you use means of communication that accept unsolicited inbound messages -- whether it is front doors, or mailboxes, or telephones, or email -- then it is you who is responsible for the gap in privacy. Plus, we traditionally put the burden on the recipient to refuse; so why should we not do this for email as well? The lack of a technical solution doesn't seem to be a good enough justification.
This is especially so, since the law (and I) only protect spammers who don't engage in unlawful or misleading behavior. I don't mind a law that requires spammers to mark their spam with some tag that can be easily searched for at all levels of the email system so that it can be blocked. But I have to defend their right to send mail unsolicited, so long as they aren't given any kind of reasonable constructive or actual notice to not do so.
Feel free to go after the fraudulent and misleading spammers, of course, but I'm dubious as to how well that will work just as a practical matter.
It is not. It is akin to surreptitiously putting said flyer in my private briefacse with the hope that I read it. I do not approve of that, either.
No, it's like if you have a powerful vacuum cleaner with you, sucking as you walk by, and they just hold the flyer up to the nozzle and let go. Spam takes two to tango. No one can ever spam you without you having participated in some way.
The content was lifted verbatim on a particular date, but not updated. Any errors or subsequent updates to that page in Wikipedia would not be present in the masquerading copies.
That's a risk with Wikipedia anyway, and if it was an issue, then people would just turn to encyclopedia providers that had a reputation for accuracy, whether that's Wikipedia only, or some more conscientious Wikipedia-reprinters. This is basically the problem that trademarks are used to solve: you use the brand to determine the source of goods, with the expectation that all goods from that source will have similar levels of quality (whether good or bad). It's like how anyone can build an IBM-compatible computer, but certain brands indicate reliable machines, and certain brands indicate crap. This isn't a good argument for copyrights, though.
These various older revisions of the Wikipedia entry flooded to the top of the results set, as the revenue scrapers tried various tricks to increase their search ranking.
And that is a problem with how well Google works. Again, not something that really matters for copyright purposes.
Automatic copyright not having an assurance of success is not a reason to disregard it.
That's not why I don't like it. In fact, I know that even with an opt-in system of copyrights, most will still lack economic value. The difference is, if we're going to offer subsidies for works, and if issuing those subsidies is not cost-free (which is the case, since all copyrights harm the public by their very existence), then we should selectively offer the subsidies only when necessary. Lacking psychic powers, we can't read the minds of authors and know whether or not a copyright is needed for work A, but not for work B. The best we can do is to ask the authors and hope that they'll be truthful; thus, an opt-in system is the best system we can set up. An opt-out system wouldn't work, because the authors we're trying to exclude (on a per-work basis) are the ones that are likeliest to not indicate their preference either way.
This is like arguing that if I buy a plot of land, anyone who finds a nugget of gold in it can not only keep that nugget.. but call in a gold nugget extraction company and keep everything for themselves before I even finish my breakfast. Yet if I had invested $1 in an "All potential gold nuggets (which may or may not exist) on my land belong to me" sign, this couldn't happen.
The funny thing is, that's kind of accurate. The law disfavors waste, and favors the constructive use of property. If you have a parcel of land that you are not using, someone else can move in, openly act as the owner, and in time, displace you. It's called adverse possession, and is an ancient part of real property law. It doesn't happen before you can finish your breakfast, but even with times of 5-25 years (depending on where it happens), it still happens pretty regularly. Especially if it's not the fee simple that is possessed, but a mere easement. (E.g. if someone trespasses across your land long enough, basically using it for a shortcut, they can ultimately get the right to use it as a shortcut whether you like it or not) And a good way to foil adverse possession is to maintain your land, erect fences and 'no trespassing' signs, and generally behave as the owner ought to, rather than ignoring the land.
Note that some people in the legal field have suggested applying this concept to copyrights and patents.
The primary beneficiaries towards individual inattention to rights are never some amorphous general public, but specific entities who leech for their personal gain.
No, not at all. The public benefits whenever there are more publishers than when there are fewer. The public benefits whenever derivative works are created as opposed to when they aren't. The public benefits by copying works for free, as opposed to when they aren't allowed. Even if most members of the public do not fully exercise their rights (I would have a hard time stor
There are anti-junk fax laws, which is what we need for SPAM. CAN-SPAM does something, but it's just a drop in the bucket. We don't have a SPAM type problem in the US mail for two reasons: fail fraud and cost.
Oh, I greatly disagree. Besides, the junk fax law is unconstitutional. An FTC-administered 'Do Not Fax' list would be far superior.
At the same time, we have mail fraud laws so many things you see in SPAM (fake drugs, prescription drugs sold non-prescription, scams like 419s, etc) could actually be prosecuted and the responsible parties locked up. If we could do that with SPAM, things would come under control much faster.
We do. Fraud is fraud; the mechanism isn't really important. There's no credible claims for protecting fraudulent spam. It's truthful spam that is protected under the First Amendment. Of course, I can't recall the last time I saw any, but if it's out there, then it would be protected.
Both state and federal courts have jurisdiction over federal questions
Well, that's almost always true. There are a few areas of exclusive federal jurisdiction, such as admiralty, patents, and copyrights. But you're right in this case, anyway, and about the rest.
Regulation of commercial speech is exactly the kind of thing that has been permitted in the past
Yes, but be careful. Commercial speech is protected by the First Amendment, and there's been a number of cases from the federal Supreme Court to that effect. It is somewhat regulable, but the state doesn't have an absolutely free hand. I suggest looking at the Central Hudson case.
free speech does not extend where you have not been invited
Assuming you're talking about non-public fora, then yes. However, that invitation can be implicit. There is an implicit permission for solicitors to enter your property so as to knock on your front door and ask you if you've found Jesus, and if so, could you please return him. The onus is on the inhabitant of the house to either tell them to leave, or to put up a 'No solicitors' sign which reasonably puts solicitors on notice that they may not come talk to you in the first place. The same appears to be true for telephone solicitations, and the FTC's Do Not Call List serves the function of providing notice.
So it's not difficult to imagine that in the realm of email, it is your obligation to tell spammers to not spam you, whether directly, or in the form of notice. That no one has created a good mechanism for doing this does not strike me as all that relevant. We may need one, but the First Amendment stands even if we haven't got such a mechanism.
Of course, some commercial speech is regulable: if it is misleading, or if it encourages unlawful activity (e.g. stock manipulations, illegal drugs). Otherwise, the government cannot regulate unless there is a substantial government interest and the regulation will directly serve that interest while not impairing speech unduly. Since most of the Internet is beyond the authority of federal or state government, I can't imagine many laws that would actually advance a government interest. So long as a spammer can safely spam from outside our borders, anti-spam laws would be fatally underinclusive, and thus unconstitutional.
They don't randomly generate mailing addresses, and the random generation of email addresses could easily be seen as an invasion of privacy.
I fail to see how. Besides, as a mere matter of Constitutional law (ignoring USPS regulations) I don't see how randomly generating snail mail addresses would matter at all. As it happens, while junk mailers don't have a right to force you to read junk mail, they do have a right to send it to you in the hope that you will receive it and read it. It is akin to someone standing on the street, handing out flyers; he can't make you take one, but he can hold it out and ask you to. There's an effective, though half-assed way to get your postmaster to intercept and return junk mail for you without actually delivering it, but that doesn't have any bearing here.
The very case I am arguing for is the case where revenue is unexpected (such as a viral video which takes off), such that the creator would never go to the trouble of obtaining copyright if a separate registration/fee process was required. Content of this nature (e.g. the Chocolate Rain kid) has unpredictable chances of success to the creator, less so to individuals who would inevitably make it their profession to leech/promote/link other peoples work. The content creator would thus be disenfranchised if their works automatically entered the public domain.
Well, no one is really that good at estimating what works by unknowns will turn out to be successes, and whether those successes will be minor (e.g. one-hit wonders) or truly significant. The publishing industries take a shotgun approach as a result. A record label might fund a hundred bands, with the hope that one or two will be successful enough to compensate for the losses on the others, and yield a hefty profit besides.
Anyway, if an author created a work for some reason other than the belief that he could exploit the copyright of that work to make money -- for example, if he created the work for the fame, or for arts' sake, or for any of a number of other, non-copyright-related reasons -- then it is inappropriate for him to get a copyright. We should try to only grant copyrights when necessary to cause works to be created and published. If a work would be created and published regardless, then no copyright should issue. A registration system is about the best way we have to make the determination of which works should and shouldn't get copyrights; authors who are incentivized by copyright will seek it out, authors who aren't will ignore it.
It is therefore perfectly desirable that 1) if the author doesn't care about his work enough to jump a very tiny hurdle in order to get a copyright, he doesn't get one; and 2) for such public domain works, the public can enjoy competition by many diverse publishers, rather than having to deal with a monopolist.
Authors certainly are not getting 'disenfranchised' because they would have never bothered to get 'enfranchised' to begin with. Copyright is a lottery, in that most of them are worthless, but if you don't bother to play, you can't win. I don't mind allowing authors to work for free, if they're willing to. Why would I ever be against it?
You would search for "tennis shoes", and get not only the Wikipedia page on tennis shoes, but dozens or more copies of that page which 3rd parties had lifted verbatim from Wikipedia, and put on their own domain with various revenue-generating adverts. This made it more difficult to search because the results set was so muddied.
Well, no, actually. If they're lifting the content verbatim, then it's the same no matter where I go. Plus, of course, if I search for "tennis shoes" it isn't as though Google is going to give me the Wikipedia entry and nothing else whatsoever. There's going to be lots of hits, and in fact, having just tried it, Wikipedia is 24th. Personally, when I want to search for something on Wikipedia, I usually google for it with the additional term site:wikipedia.org to limit results to that domain. In fact, there's a handy Firefox plugin that does this for me.
I'm not seeing a problem here. I certainly don't see a problem with there being multiple copies of a work. Nor does Wikipedia, which specifically permits exactly this. If they don't mind, why should I care that you do? Especially when there's such an easy solution?
Maybe we can agree on a more general point - that sometimes popular content is unpredictable at the time of its creation?
Again, I'd go further. That's almost always the case. In fact, this is why I'm often so disappointed at the short shrift that publishers get from the/. crowd. Publishers, very often, are more important to the success of a work than the author is. Oh, it's important to get a good work to begin with, as you can only pretty up crap
It cannot be equal as it becomes a one to many relationship - one creator, multiple opportunistic reposters. Exclusive control is irrelevant when income from advertising revenue would go to the first reposter who got it linked to slashdot/digg/whatever. This would be a mess, with zero-cost and zero-risk to repost other peoples public domain content, the internet would be awash with people racing to cash in.
No, it is equal. There is nothing that prevents the creator from getting those links to his work from multiple sites, rather than some reposter. Indeed, if anything, the creator has a first-to-market advantage, since he is the first person to know of the work and where he's put it.
This would be rather like the folks who used to repost Wikipedia pages and grab advertising revenue, except it would be harder to mitigate as Wikipedia being a single source was easy to promote in search ranking. I don't want to go back to an internet which looks like that - until Google tweaked their algorithm it was hard to find non-Wikipedia related search results.
And the problem with that was?
Well, say this post wins the $10 million dollar annual Slashdot 'Best Post' prize.
Well, it's hard to predict how the Slashdot Academy will choose who to nominate or award.
Since your words are in the public domain, all that revenue would go to me, rather than a split based on how many quoted characters of yours were included if you had retained copyright.
No. First, because your typical award of that nature really has nothing to do with copyright anyway. E.g. the Nobel for literature goes to the author, not whoever holds the copyright, if there even is a copyright. No one is interested in giving prizes for creation to someone other than the creator. Second, your use of my words, even if they were copyrighted, would pretty certainly be a fair use, and not infringing, so I couldn't even make a realistic claim on a share of the purse.
I've not only lost nothing, I never had a chance to gain.
Someone somewhere would have seen the rising interest and snapped up the ad revenue - these leeches would turn it into a profession. You haven't made the case as to why or how this would benefit a) content creators, b) the general public.
A) I don't care whether or not creators benefit. Copyright isn't meant to help them. It's like asking how a dairy cow benefits from the sale of milk. Copyright is meant to benefit the public, and in order to accomplish that, some incidental benefit might happen to be conferred on authors. But it should always be as little private benefit as possible, for as great a public benefit as possible, and it's always secondary; a means, not an end.
B) The general public always benefits when copies of the same work -- which are commodities -- can be acquired from multiple sources that are in competition, thus reducing the cost to the public down to about the marginal cost of the copies themselves. Copyrights are monopolies, and monopolies are never good for the public, but may sometimes be necessary evils to be tolerated for a brief time, if they don't overstep their bounds.
It provides a simple mechanism for the little guy to benefit from their automatic copyright at no cost. This seems efficient to me, not wasteful.
Oh, it is very efficient for the author, but I wasn't speaking of him, nor do I care whether the author realizes a gain or not. It is wasteful to the public. Copyrights are an artificial right, granted by the public via the government that draws its power and legitimacy from the public. The right is to be a monopolist, charging monopoly prices, which means that the value of a copyright comes directly out of the pockets of everyone else! If it is necessary to grant the right to serve a public purpose, and the public nevertheless sees a net benefit even after having been extorted, then so be it. But if the author would've created and published the work regardless, then there is no reason for th
I don't see their point. As I've said, most works have no copyright-related economic value at all; a small number, do, OTOH. Of those, most are front-loaded; but a very small number have significant lasting value. Of course, the odds of creating that sort of work are amazingly slim. Dr. Seuss was like the Stephen King of children's literature: prolific and popular. But he is the exception, not the rule. Most authors never even get published. Of those that do, most never are popular enough to justify a large or second printing.
The exceptional authors cannot be the basis of our policy. To assume that they are typical and that the system should be designed around them, would be as ludicrous as assuming that everyone routinely wins millions of dollars in the lottery, and so we can safely dismantle our social welfare systems, and institute a flat tax of $500,000 per year on everyone.
So let's hear no more of Dr. Seuss, and instead think about his less successful cousin, Dr. Schlemiel.
If user-generated content was automatically placed in the public domain if a registration/fee process was not followed.. then you'd essentially generate a market of content-squatters - you'd have a multitude of people reposting other peoples popular content with no attribution to the original author.
That's not squatting, really, since the squatters don't adversely possess the works; that is, they aren't trying to wrest exclusive control from the creator, but are merely using it equally.
And if you do have these reposts, then so what? If it mattered to the authors, they would get copyrights. It's not as though this would be a secret. Probably it won't matter. Consider, for example, your/. posts -- it's not as though you'd be harmed if they were copied. It's not as though you'd lose anything. And the decision as to whether to get a copyright or not would be up to you. You'd have to opt-in, rather than getting one automatically, is all.
I'm interested in a flatter entertainment market, and that can only come around when the Chocolate Rain kid can compete on equal ground with the established media players, based upon a quality metric of (taste nonewithstanding) end-user views, or similar.
He sure can. All he needs to do is fill in the form, etc. I'm not suggesting that fees should be a way for the Copyright Office to support itself or to turn a profit. I just want to separate out people who don't care about copyrights (particularly people who don't care and thus wouldn't bother to dedicate their works to the public domain, since they'd have to care to do so) from people who do. A fee of a dollar would be sufficient. It's akin to copays with health care. They're not a substantial form of revenue, but they discourage wastefulness.
The copyright proposal you advocate will only create a barrier to entry and thus prevent this from occurring.
No, it will aid it, since there will be a far greater pool of public domain materials for the authors to draw upon. Nor will it be a barrier, since it is so tremendously low and available to everyone.
So, being a writer is no longer a career. Nor being a musician, nor indeed a computer programmer. Writing, composing, performing, writing software -- this is all something we're supposed to do outside of our day job? And what is our day job?
Actually, that's usually how it goes. We have the stereotype of the starving artist living in a garret, or waiting tables to earn his living, for a reason. The art you want to create as an artist usually doesn't pay the bills well enough to permit you to spend your time on it. Copyright doesn't really matter for this as the key issue is popularity. A copyright on a novel that no one will publish, no one would read, and which was written by a nobody, is basically valueless. No one would ever pirate the thing, because no one would know about it, or bother to do so even if they did know about it. So what good is a copyright?
Ever tried earning a living as a composer? As a writer?
Well, before I went back to school to become a lawyer, I was an artist, and I actually did make a living at it. However, I made a living by hiring out my labor -- just like I do as a lawyer, just like plumbers or field-workers do. Rather than create whatever I felt like, making many copies of it, and trying to sell them, I would get clients and make whatever they wanted me to make. Given the nature of my clients and projects, I can tell you that they didn't really care about copyrights either; they were not interested in them, and had other reasons for wanting these works created.
Honestly, I know a pretty good number of artists, but the vast majority of them either don't make money at it at all, and have day jobs, or at best have day jobs involving art, so that they at least get to use and practice their skills.
We need to take away the copyright power from the publishers, but improve copyright protection for the originator of the work (during their lifetime).
That really won't matter at all. Copyright cannot help you or your work become popular enough that you can make a living by exploiting the copyrights related to the work. There is no guarantee of even the slightest bit of success for artists, and in fact the vast majority never succeed at it at all, so far as making money from copyrights goes.
You're going to need to accept this truth if we're ever going to set up a decent system.
The GP was talking about artists. You are talking about the commercial products of media companies. They have very different economics.
No, they're pretty similar, really, at least as far as copyright goes.
For artists, their works increase in value as they become better known.
Except that most artists never become better known. There are, in fact, a whole hell of a lot of artists out there. The vast majority of them will never make a living by exploiting their copyrights. They'll never be famous enough for anyone to care all that much about their work. And even for those that do succeed, your claim isn't always true anyway; it depends on the quality of their earlier work.
I think many works have a long lingering value if available through a "long-tail" on-demand system.
Sure. I didn't say that the value just stops abruptly, but it diminishes so much that its value as an incentive is minimal. IIRC, the CTEA, which extended copyright terms from life+50/75/100 to life+70/95/120 resulted in an average benefit to the average author of 5 cents. I really doubt that that caused even one more work to be created which otherwise would not have. So the incentivizing effect of copyright doesn't scale proportionately with the scope and length of protection. The cost to the public, OTOH, is more or less constant. For starters, if a work enters the public domain, then rather than having to depend on a monopolist to publish the work, which he might not want to do, if he can't get enough money out of it, anyone and everyone has an opportunity to publish the work, and the competition reduces prices and makes it more likely that the work will be available in one form or another. (See e.g. the many books on Gutenberg or Googlebooks which the original publisher isn't doing anything with, and often, which few other people are doing anything with either)
The long tail is real, it's just usually irrelevant. The thick part of the curve -- the first 90% or so of all possible economic value ever -- is generally enough to incentivize authors, and it is realized pretty rapidly. So why give him more? It doesn't seem to be to anyone's benefit. The author probably won't pursue it (on demand printing or no), no one else has an opportunity, and the work goes out of print.
My current vote for the most durable value is books.
Yeah, but it really depends on the book. Victorian penny-dreadfuls were immensely popular back in their day, but no one reads them now, by and large. The tip-top authors of any given age usually manage to stick around. People still read Dickens, for example. But what was the 10th most popular English book from the year that Oliver Twist was printed? I don't even know, and I bet it's not widely read now. The odds of writing a book that is permanently popular are, as I said, on par with winning the lottery. It happens regularly, but always with someone else.
Frankly, we could probably reduce copyright to a term of, say, 10 years and see virtually no reduction in the number of works created. So we probably should!
you get this limited monopoly to spur your creation of new works, and we get the benefit of the new work plus the freedom to do whatever we want with it when the copyright has expired. Nobody seems to work out, though, exactly why the monopoly should end before all commercial value has been harvested.
It's pretty simple, really. We want to spur your creation of new works. But we want to do so for as little cost as possible, and what we're paying you, as an incentive, is with temporarily keeping the work out of the public domain. If you would create a work for a 1 year copyright, it would be wasteful to offer you a 100 year copyright. It would be just as stupid as if you were willing to wash my car for a dollar, but I paid you a hundred times as much.
It is tricky determining whether a copyright should be granted at all (some authors will create for free; we should allow them to), and if so, for how long. Ideally, we should have a means for authors to identify themselves as the kind that aren't working for free (lacking psychic powers, we probably can't do much better) on a per-work basis. And while we should have a maximum cap on how much and how long-lasting copyright we grant, we should offer it on a graduated basis, so that if an author stops bothering to opt-in every year or so, his work enters the public domain that much sooner.
Plus, as you'll recall, it is generally felt that free markets are better than monopolies. Why should the public have to suffer the indignity and abuse of a monopoly -- particularly one that exists by their own fiat! -- for one moment longer than is necessary to serve the public purpose? Who cares whether or not the monopolist has wrung every last cent out of the public with it? That's totally irrelevant.
First, this is not true. Most artists never become successful at all. Further, when a work does turn out to have copyright-related economic value, it is almost invariably 'front-loaded.' That is, you can exploit the work for the most money immediately upon publication in some medium, with the value steadily and rapidly decreasing thereafter. E.g. a movie sells the most tickets on opening weekend, and fewer every week after until finally it is so unprofitable that it leaves the theaters. When it comes out on video, it sells the most copies the first week, and again, fewer every week after that. The time horizon is usually measured in months per medium of publication. A movie might have a month, a book might have as long as a year. A newspaper, only a few hours (people don't often buy morning editions at night on the same day, much less later on), certain kinds of textbooks, perhaps several years. Creating a work that has lasting economic value is about as rare as winning the lottery. It is just stupid to design our policies around that sort of thing, it's so rare.
Second, why should we care about the little guy -- or any author, of whatever size -- at all? Copyright is meant to serve the public interest, period. This means encouraging authors to create works the otherwise wouldn't've created, and getting those works into the public domain as soon as possible (with as little protection as possible prior to that). So long as the author creates works, it is utterly immaterial whether or not he makes money at it. Nor is it a bad thing for a work to enter the public domain and for other authors, regardless of whether they're big or small, to make some use of it. All that matters is getting the most number of works created for the least amount of cost in the form of copyright protection granted (i.e. what copyrights are granted initially, how broad the grants are, and how long the grants last). Entertaining silly, romantic notions of authors is what has gotten us into the mess we now find ourselves in. We need to stop with that crap. Copyright is utilitarian; whatever copyright system best serves the public, that's what we need, without one iota of concern for authors, save for how their condition might affect the public good that is our real sole issue. The most works for the least copyright 'buck.' It's as simple as that.
Slashdot Mirror
Patents don't protect ideas, they protect inventions. Ideas are unpatentable, and a dime-a-dozen anyway. Patentable inventions are at least sufficiently refined to have been reduced to practice, useful, novel, and nonobvious.
Compare, say, the idea for practical fusion power (literally, that's it: 'There should be practical fusion power') with a copy of the plans for a practical, working fusion reactor, and lots of supporting documentation to show that it is viable. Which do you think the PTO will issue a patent for?
I'm afraid you've got it wrong, but at least you're on the right track. Incidentally, here's a major downside to the term 'intellectual property': it's vague and confusing, and you've fallen into that trap.
A copyright, for example, is not the same thing as the creative work to which the copyright pertains, nor is either of those the same as a copy in which the creative work might be fixed. A copy is certainly property. A copyright is arguably property. A creative work is certainly not property.
Ultimately, property is that which is capable of being used and enjoyed by the owner, lent to others and recoverable, and which the owner can dispose of (either by selling, or by destroying). While a creative work meets the first requirement, it cannot meet the other two (outside of extreme and unrealistic situations), largely because it's nonrivalrous. A copyright, at least, can.
However, there are non-rivalrous goods out there in which we attach property rights.
Offhand, I can't think of any. Your easement example doesn't work. The easement is very large, but it is finite. If the entire population of the world was playing golf that day, and everyone hit their ball onto that lot, you'd have a hell of a time if they all decided to retrieve it simultaneously. If the easement were truly non-rivalrous, it would be no problem at all.
IP resembles real or personal property a lot more than it resembles anything else.
Again, it depends on what 'IP' means. As a lawyer who practices in copyright and trademark, I assure you, the term is so vague, so meaningless, so deliberately confusing, that I have no idea of what people mean when they say it. I don't even use the term at all myself, save to point out why it shouldn't be used.
If you want to talk about copyright, say so. Ditto, patents, trademarks, trade secrets, publicity rights, etc. They're all different, they're all unrelated, and they're not going to be less so just because of a made-up umbrella term.
Sorry about the misspelling. The all caps, however, is fairly common in the trademark field, so it's just a habit I've developed.
That would cover the music, but not, apparently, the sound recording or the video (if it was being reused, as is the case in AMVs).
Let me propose something a little broader, but more useful: Any action engaged in by a natural person, if not for commercial gain, is not infringing. Notwithstanding this, secondary liability based upon such acts should remain actionable, except where the secondary infringer is a natural person, and the acts giving rise to secondary infringement are not for commercial gain.
The effect of this, given a reasonable definition of commercial gain, would be that people could do whatever they liked with works, so long as they didn't sell them, or trade them for anything (including other works), or use them as a draw for advertising, etc. So no sales of pirated copies under this section, no ratio-based pirate sites, no ad-supported torrent trackers (which would be secondary infringers).
And since this would only be one exception, other, independent exceptions, such as fair use would still be available.
Well, I'd want to look it up to be certain, but I suspect that the ASPRIN mark (and the HEROIN mark, also one of Bayer's) were caught up in WW1 and this hastened their going generic. ASPRIN is still protected in some jurisdictions, IIRC.
There are other, better examples in which the seizing of foreign assets during a war don't play a role. Thus, I don't invoke the ASPRIN mark much.
You mention survey evidence, is that actually a benchmark the courts would use to determine the protectability of the trademark?
Oh yes. Surveys are commonplace evidence in trademark cases. Of course, you have to construct the survey correctly, and it's a pain in the ass to do. A flawed survey loses cases. Remember, a trademark is meant to serve the public by indicating that goods so marked share a common origin, so that the consumer can anticipate an identical level of quality among marked goods. (E.g. one can of COKE-brand coke should taste the same as another. Whether it's good or bad is irrelevant, so long as it is consistent.) It's all about consumer understanding. If consumers think that the mark indicates that the good comes from a particular source (they don't have to know the source) and that all so-marked goods come from that source, then the mark functions. E.g. LEVI'S jeans are jeans from the Levi's company; LEE jeans are from a different company. But if they were just marked JEANS, then they could be from anywhere, since JEANS are what the product is, not an indicator of where it comes from, to distinguish it from other similar goods.
Surveys are a common way of sussing out what is in the mind of the consumer.
Incidentally, there was a big trademark case some years back with the MONOPOLY mark, and ultimately Congress had to intervene or the mark quite possibly would've been lost.
There are LOTS of different boards one could create.
The problem is that the Scrabble board isn't very creative. It is extremely stripped down, and there aren't many boards one could create that are simple and straightforward.
This is particularly so, since the rules (and scenes à faire doctrine; I misspoke earlier when I said roman à clef) sharply limit the creative choices available. The rules dictate a 15x15 grid, so that's not a creative choice. The game is a crossword game, and convention has a grid of squares, so a grid of squares and square tiles are not creative choices. The rules dictate a specific arrangement and number of special scoring squares, so that's not a creative choice. The Scrabulous board has no text written on it, so that wasn't copied and isn't at issue. Ditto for the more creative elements on the perimeter of the Scrabble board. The colors are all you've got to make a case with! And even there, the argument for using some basic colors and shades of those colors is a good one, so all you're left with is the choice to use red and blue!
I would not want to have to make the plaintiff's argument.
At worst, the board then is a derivative work of a particular set of rules governing a particular conception of the idea mentioned above. The merger doctrine does not make a work unprotectable because its based on an idea: every expression is based on an idea.
The board is an expression of some of the rules. The size of the grid expresses the 15x15 rule. The placement of scoring squares expresses the rule regarding their placement. There's no way you can say that they haven't merged with the rule.
Remember the merger doctrine? Where the expression and idea are merged such that affording protection to the expression would in effect confer protection to the underlying idea, neither is protected. Anything unoriginal may be copied. Remember how facts and other noncopyrightable elements can be plucked from any source whatsoever? The same applies here. And there are some other, similar doctrines, e.g. roman à clefs.
A graphic work may be protectable, but the nonprotectable elements that appear within it are not, and may be copied freely.
In the case of a scrabble board, we have: A board which is 15 by 15 squares. This is defined by the uncopyrightable rules of the game, and may be copied. Some squares, in certain locations, have special attributes (e.g. double word score). This is defined by the rules, and so the attributes and locations of these squares may be copied. Designating these squares by some means is an idea, and is uncopyrightable. A specific means for doing so may be copyrightable, if sufficiently creative. Coloring the special squares doesn't seem particularly creative to me. While the choice of colors -- red and blue -- may be creative, the use of different shades of those colors likely is not, where the attributes are related (e.g. double letter is a shade of double word). Also, where we're looking at a mere three colors (the board, and the two base shades), it seems likely that merger would apply, since there's a very finite number of basic possibilities, especially where extrinsic factors that limit creativity come into play, such as what color combinations look good to the average player.
Finally, there is the utility doctrine. Where a graphic work is useful, and where that use is inseparable from its appearance, there is no copyright. Here, we have a totally functional game board meant for playing a game on, aligning tiles, indicating the scores of words or letters placed at certain spots, etc.. It is highly utilitarian, and lacks separable ornamental features. This would likely be yet another reason to deny copyrightability on the game board art. Cf. with other games, such as Candyland, which has a very decorative board that has many non-useful features.
I don't dispute that you are a lawyer, but there is more to copyright law than most people outside the field realize sometimes.
Actually, I disagree. I suspect that SCRABBLE, while an arbitrary mark originally, has become generic over time.
The key is this: a trademark is only protected so long as it remains distinctive. This means that in the public eye, goods that the mark is applied to must be seen to come from a common source, whether or not that source is actually known, as opposed to goods not so marked, even if they are identical.
For example, if I have two bottles of absolutely pure water, and one is marked as FOO, and the other is marked as BAR, a consumer can prefer one brand over the other, and rely on bottles with one mark to come from one source. If the Bar company starts shipping water with the FOO mark, then that's trademark infringement, since they're confusing customers as to where a FOO-marked bottle comes from.
But if I just had a bottle labeled WATER, then that doesn't work as a mark, since it describes the product itself, rather than the source of the product. Anyone can use marks that describe _what_ a good is, but the only protectable marks are the ones that serve to indicate _where_ a good originates from. You don't have to say specifically who the originator is (e.g. the name of the bottler or water source), just so long as the customer can expect all similarly-marked goods to have a common origin.
The problem with SCRABBLE is that I think that in the mind of the public, SCRABBLE describes the game itself. If this can be shown -- typically through survey evidence -- then the mark is generic and not protectable. It's only protectable if the public thinks that a game with the SCRABBLE mark attached is actually a SCRABBLE-brand crossword game, as opposed to some other brand of identical game.
It's just a hunch, but I bet most people think that the game in question is called SCRABBLE, no matter who makes it, just like chess is chess, and checkers is checkers. I think it's a generic name. This is always the danger with successful trademarks; too much success can result in the public overassociating the good and the mark, and that kills the mark. Examples: THERMOS, ELEVATOR, ESCALATOR, TRAMPOLINE, etc. KLEENEX and XEROX are always right on the edge, and SANKA was for a while too (until the generic term 'decaf' became more popular).
No, you've got it backwards. The law prioritizes preserving the public domain status of noncopyrightable elements over whatever else might be copyrightable; thus, whatever copyright there could be on the board artwork, it doesn't cover the arrangement of the squares on the playing field. And if you cannot separate the two, then it would all be uncopyrightable. Copyright is never allowed to cover uncopyrightable material.
Harassment is words, conduct, or action (usually persistent) that annoys with no legitimate purpose.
First, there needs to be some intent to harass, rather than to just engage in the conduct. Second, there is a legitimate purpose: to advertise goods or services.
If it were legitimate advertising or marketing, companies would not have problems being associated with it
No, you can have disfavored but legitimate things. Businesses could surely pay to paint logos or slogans on the bodies of strippers as a means of advertising, but they don't, probably because the public backlash against it (assuming that we're talking about a business not already in the sex industry) would be more than the possible gains.
Spam has an unsavory reputation. This doesn't mean it is inherently not a legitimate means of advertising. Nor does that mean that all spam is inherently legitimate; just that some uses of the medium can be legitimate.
A spam bot doesn't know if you're reading your inbox, either, but the difference is that the spam bot doesn't know or care if it's got a real inbox or not.
If it's not a real inbox, then where the hell would it go? Either to nowhere, in which case, why do we particularly care, or someone is collecting misaddressed mail, which they're hardly obligated to do. So long as you pay the postage, I would suspect that the USPS doesn't care if you send mail to nonexistent addresses. They'll either return it as undeliverable, or if that isn't possible, it'll go to the dead letter office. So I doubt that you have to 'get a house' in that sphere either.
because you don't have approve it before it costs you bandwidth and occupies your server space.
But you did approve it, by allowing unsolicited inbound mail in the first place. The consent is presumed by default, but it's still there. Just as if you have a house, you are presumed to consent to people knocking on the door; if you have a phone, you are presumed to consent to people calling you; if you have a mailing address, you are presumed to consent to people mailing you. It is your job to rebut that presumption, either with actual notice (specifically telling individuals to stop) or constructive notice (putting out a sign so that people don't even bother trying). This is just how our society operates.
If 400 people a day randomly dialed your desk phone and it was a widespread phenomenon, you can be damn sure there'd be legislation about it.
If 400 people a day randomly dialed my phone in order to sell me something, I would call that phenomenon telemarketing, which would be kind of funny, since that's what everyone else already calls it. And we would have a law about it, and the law would say that it is legal, but that if I don't want it, I can always engage in constructive notice by signing up for the DNC list.
I don't mind a Do-Not-Spam list, though I don't think it would work at all.
Yeah, there was. It was called interrupting them and demanding not to be called again.
No, that's actual notice. It's like telling each door-to-door salesman to go away, after he has knocked. The DNC list provides constructive notice, like putting up a 'no solicitors' sign in the yard.
Email needs a solution. Requiring bulk licenses or express invitation would do it.
It would also be unconstitutional; people have a right to talk at you, they just don't have a right to force you to listen. Try again.
My email inbox is not a public forum. Spam does not have a right to be there uninvited.
I agree. If it was a public forum, then spammers would have a right to put spam in your inbox, whether you liked it or not. Happily, this is not the case. Instead, it is a private forum, which is fully under your control, but which you have chosen to open up to spammers by your willingness to run or patronize a mail server that accepts unsolicted inbound mail from strangers. Spammers have a right to send spam to a server. The owner of t
I believe that an economy of micro-transactions (a scaled up AdSense, if you will) based upon copyrights on any and all user created content and funded through advertising, would be a more compelling future than one where content was placed in the public domain unless copyright was explicitly sought by the author.
Why? First, you're throwing money at authors who don't appear to need it, and took no steps towards so much as asking for it. That's wasteful. When someone gives you something for free, why not let them? Second, there's no real assurance that microtransactions work. It's been a pie in the sky idea for well over a decade now. Third, especially why would it work if funded by advertising? I for one, despise unsolicited advertising in all its forms, and use filters to get rid of it whenever possible. And I certainly would bemoan the idea of yet more ads plastered in every nook and cranny.
Opt-in copyright, OTOH, has a long and successful history. It works, we know it works, and for most of the time that we have had copyright at all, that is what it has been. The current era of copyright is the aberration.
Unless you'd accept something like an artificial life simulation using the properties of emergence to model the various actors involved?
Do you have one?
Unconstitutional? In what world? Better yet - are you arguing that it's wrong?
Yes. A blanket ban is unconstitutional and wrong.
That people should be permitted to consume all of my company's toner and paper supply on a daily basis because they want me to take advantage of their training seminars or low cost vacation packages?!?
You're the one permitting them. It's not as though a DNC list is impossible or impractical. It's not as though there aren't fax machines that just store inbound faxes as data, rather than printing them out, or which can block various numbers. If you want to have a fax machine that accepts unsolicited faxes, then don't get upset when it does. If you don't want it to, then it is your problem. I can put up with a government-run DNC list to assist you (though really there should be something built into the handshaking protocol) but a blanket ban goes too far.
N.b. that I hate all unsolicited advertising; I block text ads on Google, and banners on every website I go to. I skip over commercials, and if someone had augmented reality glasses so that I could block out ads in the newspaper or on billboards, I'd be overjoyed. So don't misunderstand me. I think that these guys have rights to send, though to not force you to receive, just as Nazis have a right to march down the street. It doesn't mean that I like it, or that I want it to happen. I just think that free speech means that we're stuck with it.
An email address is not like a postal address. I would contest any finding that says a spammer can harass you without your having consented to it.
Sending spam is not the same thing as harassment. It's just an inconvenience. Harassment implies some sort of malice. Outside of outright fraud (e.g. a confidence game) it doesn't seem to crop up much in spam, IME.
But there, the individuals are canvassing a specific area on a street of homes with doors. They know you're there because they can see you, not because they walked up to a particular spot, knocked in thin air, and happened on a door.
Well, they don't know you're there. I bet they get a lot of houses with no one home. While guessing at email addresses is a bit extreme, I think that it ignores the issue of harvested addresses, which is more pressing. Anyway, you're merely describing wardialing, except that instead of merely scanning what's out there, you're earnestly hoping a human being will get your message. AFAIK, that's not illegal. So why should it be here?
That's precisely the point, though. There is no way for you to exercise your own right to exclude effectively, because the spam comes regardless, and my personal email inbox is not a public forum. There is no way to set up a notice system that says "no bulk solicitations"
Well, there is: you can have the notice in the email address itself, or better yet, in a form that breaks the email address whenever it is posted, so that some human has to either manually see the notice (in order to remove it) or has to make a regex, which I think would suffice for constructive notice. It's just not a very good system.
Anyway, there wasn't a telephone equivalent either until the DNC list was created. So here's a big problem: figure out a technical solution to the notice question. I bet you could do very well for yourself if you can manage it.
I do not believe might right to privacy and non-harrassment is in equipoise with a spammer's right to speak to me without permission, and I do not believe it fundamentally constrains their right to speak to limit their speech to them getting either (a) a bulk-license from a mail domain operator or (b) specific permission (by mailing list signup or what have you) from the individual.
I disagree. Sending an email to you, in the hope that it will arrive, does not pierce your sphere of privacy one iota, unless you go and open a big hole in it by accepting emails from anyone who sends them to you. If you don't want spam, then don't use email; no spammer could ever invade your privacy then! But when you use means of communication that accept unsolicited inbound messages -- whether it is front doors, or mailboxes, or telephones, or email -- then it is you who is responsible for the gap in privacy. Plus, we traditionally put the burden on the recipient to refuse; so why should we not do this for email as well? The lack of a technical solution doesn't seem to be a good enough justification.
This is especially so, since the law (and I) only protect spammers who don't engage in unlawful or misleading behavior. I don't mind a law that requires spammers to mark their spam with some tag that can be easily searched for at all levels of the email system so that it can be blocked. But I have to defend their right to send mail unsolicited, so long as they aren't given any kind of reasonable constructive or actual notice to not do so.
Feel free to go after the fraudulent and misleading spammers, of course, but I'm dubious as to how well that will work just as a practical matter.
It is not. It is akin to surreptitiously putting said flyer in my private briefacse with the hope that I read it. I do not approve of that, either.
No, it's like if you have a powerful vacuum cleaner with you, sucking as you walk by, and they just hold the flyer up to the nozzle and let go. Spam takes two to tango. No one can ever spam you without you having participated in some way.
The content was lifted verbatim on a particular date, but not updated. Any errors or subsequent updates to that page in Wikipedia would not be present in the masquerading copies.
That's a risk with Wikipedia anyway, and if it was an issue, then people would just turn to encyclopedia providers that had a reputation for accuracy, whether that's Wikipedia only, or some more conscientious Wikipedia-reprinters. This is basically the problem that trademarks are used to solve: you use the brand to determine the source of goods, with the expectation that all goods from that source will have similar levels of quality (whether good or bad). It's like how anyone can build an IBM-compatible computer, but certain brands indicate reliable machines, and certain brands indicate crap. This isn't a good argument for copyrights, though.
These various older revisions of the Wikipedia entry flooded to the top of the results set, as the revenue scrapers tried various tricks to increase their search ranking.
And that is a problem with how well Google works. Again, not something that really matters for copyright purposes.
Automatic copyright not having an assurance of success is not a reason to disregard it.
That's not why I don't like it. In fact, I know that even with an opt-in system of copyrights, most will still lack economic value. The difference is, if we're going to offer subsidies for works, and if issuing those subsidies is not cost-free (which is the case, since all copyrights harm the public by their very existence), then we should selectively offer the subsidies only when necessary. Lacking psychic powers, we can't read the minds of authors and know whether or not a copyright is needed for work A, but not for work B. The best we can do is to ask the authors and hope that they'll be truthful; thus, an opt-in system is the best system we can set up. An opt-out system wouldn't work, because the authors we're trying to exclude (on a per-work basis) are the ones that are likeliest to not indicate their preference either way.
This is like arguing that if I buy a plot of land, anyone who finds a nugget of gold in it can not only keep that nugget.. but call in a gold nugget extraction company and keep everything for themselves before I even finish my breakfast. Yet if I had invested $1 in an "All potential gold nuggets (which may or may not exist) on my land belong to me" sign, this couldn't happen.
The funny thing is, that's kind of accurate. The law disfavors waste, and favors the constructive use of property. If you have a parcel of land that you are not using, someone else can move in, openly act as the owner, and in time, displace you. It's called adverse possession, and is an ancient part of real property law. It doesn't happen before you can finish your breakfast, but even with times of 5-25 years (depending on where it happens), it still happens pretty regularly. Especially if it's not the fee simple that is possessed, but a mere easement. (E.g. if someone trespasses across your land long enough, basically using it for a shortcut, they can ultimately get the right to use it as a shortcut whether you like it or not) And a good way to foil adverse possession is to maintain your land, erect fences and 'no trespassing' signs, and generally behave as the owner ought to, rather than ignoring the land.
Note that some people in the legal field have suggested applying this concept to copyrights and patents.
The primary beneficiaries towards individual inattention to rights are never some amorphous general public, but specific entities who leech for their personal gain.
No, not at all. The public benefits whenever there are more publishers than when there are fewer. The public benefits whenever derivative works are created as opposed to when they aren't. The public benefits by copying works for free, as opposed to when they aren't allowed. Even if most members of the public do not fully exercise their rights (I would have a hard time stor
There are anti-junk fax laws, which is what we need for SPAM. CAN-SPAM does something, but it's just a drop in the bucket. We don't have a SPAM type problem in the US mail for two reasons: fail fraud and cost.
Oh, I greatly disagree. Besides, the junk fax law is unconstitutional. An FTC-administered 'Do Not Fax' list would be far superior.
At the same time, we have mail fraud laws so many things you see in SPAM (fake drugs, prescription drugs sold non-prescription, scams like 419s, etc) could actually be prosecuted and the responsible parties locked up. If we could do that with SPAM, things would come under control much faster.
We do. Fraud is fraud; the mechanism isn't really important. There's no credible claims for protecting fraudulent spam. It's truthful spam that is protected under the First Amendment. Of course, I can't recall the last time I saw any, but if it's out there, then it would be protected.
Both state and federal courts have jurisdiction over federal questions
Well, that's almost always true. There are a few areas of exclusive federal jurisdiction, such as admiralty, patents, and copyrights. But you're right in this case, anyway, and about the rest.
Regulation of commercial speech is exactly the kind of thing that has been permitted in the past
Yes, but be careful. Commercial speech is protected by the First Amendment, and there's been a number of cases from the federal Supreme Court to that effect. It is somewhat regulable, but the state doesn't have an absolutely free hand. I suggest looking at the Central Hudson case.
free speech does not extend where you have not been invited
Assuming you're talking about non-public fora, then yes. However, that invitation can be implicit. There is an implicit permission for solicitors to enter your property so as to knock on your front door and ask you if you've found Jesus, and if so, could you please return him. The onus is on the inhabitant of the house to either tell them to leave, or to put up a 'No solicitors' sign which reasonably puts solicitors on notice that they may not come talk to you in the first place. The same appears to be true for telephone solicitations, and the FTC's Do Not Call List serves the function of providing notice.
So it's not difficult to imagine that in the realm of email, it is your obligation to tell spammers to not spam you, whether directly, or in the form of notice. That no one has created a good mechanism for doing this does not strike me as all that relevant. We may need one, but the First Amendment stands even if we haven't got such a mechanism.
Of course, some commercial speech is regulable: if it is misleading, or if it encourages unlawful activity (e.g. stock manipulations, illegal drugs). Otherwise, the government cannot regulate unless there is a substantial government interest and the regulation will directly serve that interest while not impairing speech unduly. Since most of the Internet is beyond the authority of federal or state government, I can't imagine many laws that would actually advance a government interest. So long as a spammer can safely spam from outside our borders, anti-spam laws would be fatally underinclusive, and thus unconstitutional.
They don't randomly generate mailing addresses, and the random generation of email addresses could easily be seen as an invasion of privacy.
I fail to see how. Besides, as a mere matter of Constitutional law (ignoring USPS regulations) I don't see how randomly generating snail mail addresses would matter at all. As it happens, while junk mailers don't have a right to force you to read junk mail, they do have a right to send it to you in the hope that you will receive it and read it. It is akin to someone standing on the street, handing out flyers; he can't make you take one, but he can hold it out and ask you to. There's an effective, though half-assed way to get your postmaster to intercept and return junk mail for you without actually delivering it, but that doesn't have any bearing here.
The very case I am arguing for is the case where revenue is unexpected (such as a viral video which takes off), such that the creator would never go to the trouble of obtaining copyright if a separate registration/fee process was required. Content of this nature (e.g. the Chocolate Rain kid) has unpredictable chances of success to the creator, less so to individuals who would inevitably make it their profession to leech/promote/link other peoples work. The content creator would thus be disenfranchised if their works automatically entered the public domain.
/. crowd. Publishers, very often, are more important to the success of a work than the author is. Oh, it's important to get a good work to begin with, as you can only pretty up crap
Well, no one is really that good at estimating what works by unknowns will turn out to be successes, and whether those successes will be minor (e.g. one-hit wonders) or truly significant. The publishing industries take a shotgun approach as a result. A record label might fund a hundred bands, with the hope that one or two will be successful enough to compensate for the losses on the others, and yield a hefty profit besides.
Anyway, if an author created a work for some reason other than the belief that he could exploit the copyright of that work to make money -- for example, if he created the work for the fame, or for arts' sake, or for any of a number of other, non-copyright-related reasons -- then it is inappropriate for him to get a copyright. We should try to only grant copyrights when necessary to cause works to be created and published. If a work would be created and published regardless, then no copyright should issue. A registration system is about the best way we have to make the determination of which works should and shouldn't get copyrights; authors who are incentivized by copyright will seek it out, authors who aren't will ignore it.
It is therefore perfectly desirable that 1) if the author doesn't care about his work enough to jump a very tiny hurdle in order to get a copyright, he doesn't get one; and 2) for such public domain works, the public can enjoy competition by many diverse publishers, rather than having to deal with a monopolist.
Authors certainly are not getting 'disenfranchised' because they would have never bothered to get 'enfranchised' to begin with. Copyright is a lottery, in that most of them are worthless, but if you don't bother to play, you can't win. I don't mind allowing authors to work for free, if they're willing to. Why would I ever be against it?
You would search for "tennis shoes", and get not only the Wikipedia page on tennis shoes, but dozens or more copies of that page which 3rd parties had lifted verbatim from Wikipedia, and put on their own domain with various revenue-generating adverts. This made it more difficult to search because the results set was so muddied.
Well, no, actually. If they're lifting the content verbatim, then it's the same no matter where I go. Plus, of course, if I search for "tennis shoes" it isn't as though Google is going to give me the Wikipedia entry and nothing else whatsoever. There's going to be lots of hits, and in fact, having just tried it, Wikipedia is 24th. Personally, when I want to search for something on Wikipedia, I usually google for it with the additional term site:wikipedia.org to limit results to that domain. In fact, there's a handy Firefox plugin that does this for me.
I'm not seeing a problem here. I certainly don't see a problem with there being multiple copies of a work. Nor does Wikipedia, which specifically permits exactly this. If they don't mind, why should I care that you do? Especially when there's such an easy solution?
Maybe we can agree on a more general point - that sometimes popular content is unpredictable at the time of its creation?
Again, I'd go further. That's almost always the case. In fact, this is why I'm often so disappointed at the short shrift that publishers get from the
It cannot be equal as it becomes a one to many relationship - one creator, multiple opportunistic reposters. Exclusive control is irrelevant when income from advertising revenue would go to the first reposter who got it linked to slashdot/digg/whatever. This would be a mess, with zero-cost and zero-risk to repost other peoples public domain content, the internet would be awash with people racing to cash in.
No, it is equal. There is nothing that prevents the creator from getting those links to his work from multiple sites, rather than some reposter. Indeed, if anything, the creator has a first-to-market advantage, since he is the first person to know of the work and where he's put it.
This would be rather like the folks who used to repost Wikipedia pages and grab advertising revenue, except it would be harder to mitigate as Wikipedia being a single source was easy to promote in search ranking. I don't want to go back to an internet which looks like that - until Google tweaked their algorithm it was hard to find non-Wikipedia related search results.
And the problem with that was?
Well, say this post wins the $10 million dollar annual Slashdot 'Best Post' prize.
Well, it's hard to predict how the Slashdot Academy will choose who to nominate or award.
Since your words are in the public domain, all that revenue would go to me, rather than a split based on how many quoted characters of yours were included if you had retained copyright.
No. First, because your typical award of that nature really has nothing to do with copyright anyway. E.g. the Nobel for literature goes to the author, not whoever holds the copyright, if there even is a copyright. No one is interested in giving prizes for creation to someone other than the creator. Second, your use of my words, even if they were copyrighted, would pretty certainly be a fair use, and not infringing, so I couldn't even make a realistic claim on a share of the purse.
I've not only lost nothing, I never had a chance to gain.
Someone somewhere would have seen the rising interest and snapped up the ad revenue - these leeches would turn it into a profession. You haven't made the case as to why or how this would benefit a) content creators, b) the general public.
A) I don't care whether or not creators benefit. Copyright isn't meant to help them. It's like asking how a dairy cow benefits from the sale of milk. Copyright is meant to benefit the public, and in order to accomplish that, some incidental benefit might happen to be conferred on authors. But it should always be as little private benefit as possible, for as great a public benefit as possible, and it's always secondary; a means, not an end.
B) The general public always benefits when copies of the same work -- which are commodities -- can be acquired from multiple sources that are in competition, thus reducing the cost to the public down to about the marginal cost of the copies themselves. Copyrights are monopolies, and monopolies are never good for the public, but may sometimes be necessary evils to be tolerated for a brief time, if they don't overstep their bounds.
It provides a simple mechanism for the little guy to benefit from their automatic copyright at no cost. This seems efficient to me, not wasteful.
Oh, it is very efficient for the author, but I wasn't speaking of him, nor do I care whether the author realizes a gain or not. It is wasteful to the public. Copyrights are an artificial right, granted by the public via the government that draws its power and legitimacy from the public. The right is to be a monopolist, charging monopoly prices, which means that the value of a copyright comes directly out of the pockets of everyone else! If it is necessary to grant the right to serve a public purpose, and the public nevertheless sees a net benefit even after having been extorted, then so be it. But if the author would've created and published the work regardless, then there is no reason for th
I don't see their point. As I've said, most works have no copyright-related economic value at all; a small number, do, OTOH. Of those, most are front-loaded; but a very small number have significant lasting value. Of course, the odds of creating that sort of work are amazingly slim. Dr. Seuss was like the Stephen King of children's literature: prolific and popular. But he is the exception, not the rule. Most authors never even get published. Of those that do, most never are popular enough to justify a large or second printing.
The exceptional authors cannot be the basis of our policy. To assume that they are typical and that the system should be designed around them, would be as ludicrous as assuming that everyone routinely wins millions of dollars in the lottery, and so we can safely dismantle our social welfare systems, and institute a flat tax of $500,000 per year on everyone.
So let's hear no more of Dr. Seuss, and instead think about his less successful cousin, Dr. Schlemiel.
If user-generated content was automatically placed in the public domain if a registration/fee process was not followed.. then you'd essentially generate a market of content-squatters - you'd have a multitude of people reposting other peoples popular content with no attribution to the original author.
/. posts -- it's not as though you'd be harmed if they were copied. It's not as though you'd lose anything. And the decision as to whether to get a copyright or not would be up to you. You'd have to opt-in, rather than getting one automatically, is all.
That's not squatting, really, since the squatters don't adversely possess the works; that is, they aren't trying to wrest exclusive control from the creator, but are merely using it equally.
And if you do have these reposts, then so what? If it mattered to the authors, they would get copyrights. It's not as though this would be a secret. Probably it won't matter. Consider, for example, your
I'm interested in a flatter entertainment market, and that can only come around when the Chocolate Rain kid can compete on equal ground with the established media players, based upon a quality metric of (taste nonewithstanding) end-user views, or similar.
He sure can. All he needs to do is fill in the form, etc. I'm not suggesting that fees should be a way for the Copyright Office to support itself or to turn a profit. I just want to separate out people who don't care about copyrights (particularly people who don't care and thus wouldn't bother to dedicate their works to the public domain, since they'd have to care to do so) from people who do. A fee of a dollar would be sufficient. It's akin to copays with health care. They're not a substantial form of revenue, but they discourage wastefulness.
The copyright proposal you advocate will only create a barrier to entry and thus prevent this from occurring.
No, it will aid it, since there will be a far greater pool of public domain materials for the authors to draw upon. Nor will it be a barrier, since it is so tremendously low and available to everyone.
So, being a writer is no longer a career. Nor being a musician, nor indeed a computer programmer. Writing, composing, performing, writing software -- this is all something we're supposed to do outside of our day job? And what is our day job?
Actually, that's usually how it goes. We have the stereotype of the starving artist living in a garret, or waiting tables to earn his living, for a reason. The art you want to create as an artist usually doesn't pay the bills well enough to permit you to spend your time on it. Copyright doesn't really matter for this as the key issue is popularity. A copyright on a novel that no one will publish, no one would read, and which was written by a nobody, is basically valueless. No one would ever pirate the thing, because no one would know about it, or bother to do so even if they did know about it. So what good is a copyright?
Ever tried earning a living as a composer? As a writer?
Well, before I went back to school to become a lawyer, I was an artist, and I actually did make a living at it. However, I made a living by hiring out my labor -- just like I do as a lawyer, just like plumbers or field-workers do. Rather than create whatever I felt like, making many copies of it, and trying to sell them, I would get clients and make whatever they wanted me to make. Given the nature of my clients and projects, I can tell you that they didn't really care about copyrights either; they were not interested in them, and had other reasons for wanting these works created.
Honestly, I know a pretty good number of artists, but the vast majority of them either don't make money at it at all, and have day jobs, or at best have day jobs involving art, so that they at least get to use and practice their skills.
We need to take away the copyright power from the publishers, but improve copyright protection for the originator of the work (during their lifetime).
That really won't matter at all. Copyright cannot help you or your work become popular enough that you can make a living by exploiting the copyrights related to the work. There is no guarantee of even the slightest bit of success for artists, and in fact the vast majority never succeed at it at all, so far as making money from copyrights goes.
You're going to need to accept this truth if we're ever going to set up a decent system.
The GP was talking about artists. You are talking about the commercial products of media companies. They have very different economics.
No, they're pretty similar, really, at least as far as copyright goes.
For artists, their works increase in value as they become better known.
Except that most artists never become better known. There are, in fact, a whole hell of a lot of artists out there. The vast majority of them will never make a living by exploiting their copyrights. They'll never be famous enough for anyone to care all that much about their work. And even for those that do succeed, your claim isn't always true anyway; it depends on the quality of their earlier work.
I think many works have a long lingering value if available through a "long-tail" on-demand system.
Sure. I didn't say that the value just stops abruptly, but it diminishes so much that its value as an incentive is minimal. IIRC, the CTEA, which extended copyright terms from life+50/75/100 to life+70/95/120 resulted in an average benefit to the average author of 5 cents. I really doubt that that caused even one more work to be created which otherwise would not have. So the incentivizing effect of copyright doesn't scale proportionately with the scope and length of protection. The cost to the public, OTOH, is more or less constant. For starters, if a work enters the public domain, then rather than having to depend on a monopolist to publish the work, which he might not want to do, if he can't get enough money out of it, anyone and everyone has an opportunity to publish the work, and the competition reduces prices and makes it more likely that the work will be available in one form or another. (See e.g. the many books on Gutenberg or Googlebooks which the original publisher isn't doing anything with, and often, which few other people are doing anything with either)
The long tail is real, it's just usually irrelevant. The thick part of the curve -- the first 90% or so of all possible economic value ever -- is generally enough to incentivize authors, and it is realized pretty rapidly. So why give him more? It doesn't seem to be to anyone's benefit. The author probably won't pursue it (on demand printing or no), no one else has an opportunity, and the work goes out of print.
My current vote for the most durable value is books.
Yeah, but it really depends on the book. Victorian penny-dreadfuls were immensely popular back in their day, but no one reads them now, by and large. The tip-top authors of any given age usually manage to stick around. People still read Dickens, for example. But what was the 10th most popular English book from the year that Oliver Twist was printed? I don't even know, and I bet it's not widely read now. The odds of writing a book that is permanently popular are, as I said, on par with winning the lottery. It happens regularly, but always with someone else.
Frankly, we could probably reduce copyright to a term of, say, 10 years and see virtually no reduction in the number of works created. So we probably should!
you get this limited monopoly to spur your creation of new works, and we get the benefit of the new work plus the freedom to do whatever we want with it when the copyright has expired. Nobody seems to work out, though, exactly why the monopoly should end before all commercial value has been harvested.
It's pretty simple, really. We want to spur your creation of new works. But we want to do so for as little cost as possible, and what we're paying you, as an incentive, is with temporarily keeping the work out of the public domain. If you would create a work for a 1 year copyright, it would be wasteful to offer you a 100 year copyright. It would be just as stupid as if you were willing to wash my car for a dollar, but I paid you a hundred times as much.
It is tricky determining whether a copyright should be granted at all (some authors will create for free; we should allow them to), and if so, for how long. Ideally, we should have a means for authors to identify themselves as the kind that aren't working for free (lacking psychic powers, we probably can't do much better) on a per-work basis. And while we should have a maximum cap on how much and how long-lasting copyright we grant, we should offer it on a graduated basis, so that if an author stops bothering to opt-in every year or so, his work enters the public domain that much sooner.
Plus, as you'll recall, it is generally felt that free markets are better than monopolies. Why should the public have to suffer the indignity and abuse of a monopoly -- particularly one that exists by their own fiat! -- for one moment longer than is necessary to serve the public purpose? Who cares whether or not the monopolist has wrung every last cent out of the public with it? That's totally irrelevant.
First, this is not true. Most artists never become successful at all. Further, when a work does turn out to have copyright-related economic value, it is almost invariably 'front-loaded.' That is, you can exploit the work for the most money immediately upon publication in some medium, with the value steadily and rapidly decreasing thereafter. E.g. a movie sells the most tickets on opening weekend, and fewer every week after until finally it is so unprofitable that it leaves the theaters. When it comes out on video, it sells the most copies the first week, and again, fewer every week after that. The time horizon is usually measured in months per medium of publication. A movie might have a month, a book might have as long as a year. A newspaper, only a few hours (people don't often buy morning editions at night on the same day, much less later on), certain kinds of textbooks, perhaps several years. Creating a work that has lasting economic value is about as rare as winning the lottery. It is just stupid to design our policies around that sort of thing, it's so rare.
Second, why should we care about the little guy -- or any author, of whatever size -- at all? Copyright is meant to serve the public interest, period. This means encouraging authors to create works the otherwise wouldn't've created, and getting those works into the public domain as soon as possible (with as little protection as possible prior to that). So long as the author creates works, it is utterly immaterial whether or not he makes money at it. Nor is it a bad thing for a work to enter the public domain and for other authors, regardless of whether they're big or small, to make some use of it. All that matters is getting the most number of works created for the least amount of cost in the form of copyright protection granted (i.e. what copyrights are granted initially, how broad the grants are, and how long the grants last). Entertaining silly, romantic notions of authors is what has gotten us into the mess we now find ourselves in. We need to stop with that crap. Copyright is utilitarian; whatever copyright system best serves the public, that's what we need, without one iota of concern for authors, save for how their condition might affect the public good that is our real sole issue. The most works for the least copyright 'buck.' It's as simple as that.