I've never understood why the Supreme Court does not use that as a test of what is a reasonable copyright term.
Three reasons.
First, the issue rarely arises, so they haven't put as much thought into it as they would for some part of the law that is frequently invoked. Second, they, like most people, are fairly susceptible to the idea that the side of authors and copyright-oriented publishers is more apt to be in the right on a copyright case than people who want the works to be in the public domain where everyone can use them in an unrestricted manner, for free. As Lessig said, it is hard to win a case against all the money in the world.
But third, and most importantly, the Court is aware that the judiciary is a co-equal branch of government with Congress, and is neither superior, nor inferior. Thus, it's inappropriate for them to act as a super-legislature, approving or vetoing laws merely because they think they're wise or foolish. They have to be more circumspect in their duties. So they tend to give Congress a decent amount of leeway. There are limits on Congress, but they're not as constrained as some might hope, wanting the courts to permit only wise laws to survive scrutiny.
But as you increase the copyright term, you get diminishing marginal returns. Eventually the yield in creative output is outweighed by the opportunity cost of not allowing society to have unencumbered use of the material. A law that extends copyright beyond that balancing point should be considered unconstitutional.
That's about right. Note, however, that the term length of copyright is only one factor. The scope of copyright (what is protected, what isn't, what exceptions there are to that protection, etc.) is also part of the analysis. Broad copyright with few exceptions is bad just as very long copyright terms are bad.
Additionally, you've set the balancing point too far out, to the benefit of the copyright maximalists. The baseline for copyright is not whether the public benefit of copyright matches the public detriment incurred by having it, but rather it is when we have no copyright at all. If a copyright law produces a net public good less than if there was no law at all, then we'd clearly be better off without the law in question. I believe that there would be more of a net public good at that point than the one you describe (since there are, after all, other incentives for authors besides copyright, and for all works to be in the public domain is entirely in the public interest).
Of course, the ideal we're aiming for is not merely a law which is equally as good as, or only marginally better than, no law at all. What Congress should aim for is whatever copyright law produces the greatest public benefit and the least public detriment, i.e. the greatest net public good. Just barely permissible isn't really going to cut it.
Fortunately, of course, while the Court allowed the CTEA to stand, they were skeptical of it (I believe that most of the justices didn't think it was actually a wise law, just a constitutional one), and indicated that they probably wouldn't let it slide; infrequent retroactive extensions might be okay, but a pattern of 'Add twenty years every twenty years' wouldn't be. We'll find out soon enough, though (unless Congress comes to its senses).
Well, that seems unlikely, given the actual wording of Art. III. Heck, George Washington once asked the Supreme Court for advice and, based on the cases and controversies clause, they basically told him to fuck off. It's an important part of the separation of powers, after all; it keeps the courts from interfering with the political branches, and keeps the courts honest, having been uninvolved with the drafting of the laws on which they'll later be called upon to interpret. Having stuck with this principle for a few centuries now, I doubt they're going to change.
Which part of that says that restrictions on Congressional power are now restrictions on state power?
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"
Not that part. The privileges and immunities clause was basically killed off in the Slaughter-House Cases in the late 19th century, and hasn't amounted to anything since. The main working part of the 14th Amendment is the due process clause, closely followed by the equal protection clause.
It's the due process clause that is relevant here:
[N]or shall any State deprive any person of life, liberty, or property, without due process of law.
The Supreme Court found that many of the rights protected in the First through Eighth Amendments are among the liberties mentioned in the due process clause. Thus, no state can infringe on those liberties without due process. In effect, then, those amendments become applicable to the states. This is known as 'incorporation.'
For various reasons, it's occurred in a piecemeal fashion. Rather than just decide that all of those rights are incorporated by the 14th Amendment, the courts have only found certain rights to, as needed. Of course, very nearly all of them have been incorporated by now, but there's still some holdouts of varying importance. Wikipedia has a decent list.
And of course, there is evidence indicating that the framers of the 14th Amendment deliberately wanted incorporation, so I'd hardly say that it's a total fabrication of the courts.
No, it wouldn't. If you want to produce your own copy, that's fine.... Copyright generally allows copies to be made, so long as you don't break a protection measure or distribute said copies. There's really no argument to make as to how you are constrained by that.
Read the language of the statute again: making a copy is infringing, per 17 USC 501 and 106(1). There are various exceptions to this, but they're narrow and not always applicable. There certainly is no such thing as a broad personal use exception. Copyright law is about more than mere distribution.
The change is between the days of the printing press, when books in the 17th C. were still only in the hands of what we'd consider the upper middle class, and 2008.
Hey, you're the one who said that for technological reasons, there was no copyright in the time of Shakespeare. Since copyright law was invented less than a century later, and there was no material change in technology in the intervening time, your claim must be false.
Without this arrangement, most artists would not have done so, and would have continued in the business of selling originals.
No, that's wrong. Remember, copyright only applied to books and maps originally. There's really no market for 'originals' there; they're typeset or engraved and printed up and sold widely. It's true that copyright was intended to get authors to create and publish works which would then enter the public domain, but the alternative was basically that the authors who needed that incentive would otherwise not create at all. There was no other market or alternative.
The fine arts didn't get copyright until well into the 19th century. Even there, it has never really amounted to much; prints and reproductions of a work of fine art are not nearly as valuable as their originals, and until fairly recently, it was usually the owner of the original that had the right to make those, not the actual artist. Anyway, it remains true that fine artists really don't need copyright; an original Van Gogh is worth a fortune, a postcard with his sunflowers on it is worth almost nothing. And of course, originally, his paintings were worthless too, not because of a lack of copyright, but because no one liked them. Copyright failed to incentivize Van Gogh and didn't play a role in his posthumous success.
Frankly, the fine arts are an area where we could probably substantially reduce copyright and see no ill effects for it.
The notion of promoting the public good has never meant contemporaneous promotion, but merely the eventual seeding of the people with broad access.
If by 'broad access' you mean 'absolute rights' then sure. I know perfectly well that copyright is about delayed gratification. That's fine, so long as the gratification is great enough to make up for the delay and for the cost of the rights to begin with.
Jefferson was not opposed to patents.
He is well known to have been skeptical about them. Witness his back and forth with Madison while the Constitution was being written. So long as they served the public interest, he didn't have a problem with them, but he was well aware that without that, there was no reason for the public to suffer the embarrassment of such monopolies, and that patents and copyrights were unusual in being tolerable monopolies of any kind.
to illustrate the difference between the natural right a man has in the work of occupation
Given that property was an area in which Jefferson differed from Locke, I think that your claim of natural rights there is unfounded; both as to Jefferson and reality. Property is a consensus agreement to serve the public good, no more, no less.
Copyright law does prohibit copyright holders from interfering, because it defines the scope of their power to act against copy owners.
No, it doesn't, provided that they have something to hang that interference upon. Copyright doesn't work, but as you conceded, access w
That's my point, though. Some things would be created far less if the copyright were short. If it takes a year to write a book and six or seven years to shop it around to publishers (not unusual for new authors), a ten year copyright term would basically mean that few would consider becoming a novelist.
The problem is, that I suggested that there would be a lesser form of copyright for unpublished works, and regular copyright for published works. The former would have a term subsisting from fixation of the work until, the sooner of 20-30 years later or publication. The latter would have a term subsisting from publication (provided that the work was registered properly no later than one year after publication and bore certain indicia of copyright during that year, if it wasn't registered immediately, to help put the public on notice).
So the timeframe you suggest would be no problem whatsoever. It would only be an issue if you took an ungodly long time to make the work, in which case you could still get the regular copyright upon publication anyway.
I assume what you meant to say was that there is a difference between a work for hire---a work in which the copyright is held by a corporation because the creator was under contract---and a work owned by a corporation because the other transferred his/her rights to the corporation.
No, I meant what I said. When a work is made for hire, the employer _is_ the author; it's little different than if you dictated a book to a secretary. The secretary's involvement doesn't mean that they are an author. Plus of course, very few works are works made for hire due to a contract; employment is the normal route due to the details of the statute.
If it is just something that the person did for fun, it seems perfectly reasonable that he/she might look back at it many years later and say, "Hey, I should try to publish that." That person should have the right to do so without having those rights stolen by someone who happened to dig a draft copy out of his/her trash bin.
If it is something that was made just for fun, then copyright was not an incentive to cause the author to create that work. Ideally then, he shouldn't get a copyright. I'd be willing to give him one if he'd at least publish, but until he does, the public would be equally as well served if anyone published the work. So it's fine if someone gets a draft in a reasonable way (e.g. not by breaking in to the author's home) and publishes it. They couldn't get a copyright, but at least we'd be better off.
Nor should we give the author forever to decide to publish. There are plenty of excellent works where it would be great if they were published, but the author has no intention of doing so. Why should we wait for them to come around, if they ever do? Why shouldn't we help the third-party publisher with an assurance that he can't be sued if he obtains the MS in a reasonable fashion? Otherwise we run into the bizarre outcome of giving the most protection to works that never benefit the public by being published and which were not created due to the incentive of copyright! That's just absurd.
Further, if someone breaks into your house and steals something that you wrote twenty years ago, that person (or someone who gets it as a result) should not be able to make a profit from it merely because you haven't chosen to make it public.
Yes, but only because he broke in. If I had given him a copy and then ignored the work, then that would be a different matter.
To protect the privacy rights of individual content creators, as long as you are alive, your unpublished creations should be yours and yours alone.
The big problem with your idea is that the public policy driving copyright couldn't give a rat's ass about privacy. In fact, it wants as many works as possible to be created and published and ultimately enter the public domain, and to grant protection to no, or as few works as possible, and for that protection to be as minimal as possible, to further the goal of getting works in the public domain.
Do you see the Copyright Clause making any mention of privacy? I don't.
Perhaps he means that he wants the same time limit to apply to everyone. If he dedicates them to the public domain, then he's at a disadvantage with everyone else. If that's the standard time limit, however, then he's in the same boat with everyone else, and there's no comparative disadvantage for him.
Why, then, should a song get almost five times the protection? (I feel this way even speaking with my songwriter hat on, BTW.)
Well, that's sort of apples and oranges. Patents don't last as long (originally the patent term was 14 years, then 17, and recently 20, and we've altered when the clock starts) but the protection is much broader, and on different subject matter.
Still, I do agree that both should be as short as possible while still encouraging the creation or invention of as much as possible. Frankly, I don't care whether a work was easy or difficult to create. If about as many still would've been created had the rewards been less, then reduce the rewards; if many more would be created if the rewards were greater, increase the rewards. It's all about getting the most bang for your buck. This is why I'd like software to have extremely short terms, maybe five years, tops; because I bet it would still get written. The revenue from years 6-50 (or more) is too little to matter much, so that's not much incentive.
Corporate-held copyrights (works for hire) should be much shorter
First, I disagree. Second, there is a difference between works made for hire (where the employer is the author) and works where a corporate entity holds the copyright but a natural person was the author.
Unpublished works should be protected by copyrighted until 10 years after the creator's death, or for up to twenty years in the case of a corporate work for hire.
Why? Copyright is meant to cause works to be created and published that otherwise would not have been. If a work is unpublished because it's still being created or prepared for publication, then fine, protect it. If a work isn't really meant to be published, don't protect it. At that point, we clearly aren't getting the author to do what we want, so we might as well remove obstacles so that some helpful third party will do it. Likewise, why so long? A decent but not overly long period of time is better. If it takes you a century to create a work, then screw it, that's too long to bother granting protection. If you can't manage in 20-30 years, you're probably hopeless.
Sounds good to me. Besides, the middle man in your example has no monopoly on that position. Nothing prevents the author, or me, or anyone else from hawking the exact same thing. For example, I can go to the bookstore and buy a copy of Hamlet, or I can go online and download a copy for free, and I can sit outside the bookstore and give copies away, or whatever. So can Shakespeare. Well, zombie Shakespeare, anyway.
Also, by mandating that authors who want a copyright on their work deposit a copy of the work at the Library of Congress, we can ensure that there is always a copy preserved and available. Though really, redundancy is the best means of preservation. Libraries and other central repositories have a bad habit of getting burned down. If everyone has a copy, it's more likely that the work will survive for the long term. This is precisely how we came to have most works from antiquity.
Don't worry about it. In 99.44% of cases, the work isn't of any value anyway (whether valueless originally, or has lost whatever value it once had), so the family isn't helped one iota. It's like giving them a box full of losing lottery tickets. The public is still harmed because the work isn't in the public domain, but the family isn't helped because the work is of no economic value. Everyone loses!
Except for the rare lottery winner who has a work that is valuable. Of course, that work was probably always valuable, so they were probably well provided for even if the copyright didn't last so long, making the whole system just that much more infuriating.
Personally, I think that if we are concerned with the widows and orphans then we ought to encourage people to save money, invest wisely, procure life insurance, and offer social welfare programs as a safety net. The advantage is that this works for everyone, rather than the extremely teensy tiny minority of families where the work that they were left has long-term economic value.
Copyrights should last 70 years because that's probably how how the artist will live after they've made it, and possibly help their family after they're dead.
I'm sorry, but that's a really stupid argument.
First, copyright isn't intended to help authors or their families. It is intended to get them to create and publish the work and otherwise to protect it as little as possible, for as brief a time as possible. That is, we want the maximum incentive for the minimum cost. If most authors would be incentivized by five years of copyright, then fifty would likely be excessive due to the problem of diminishing returns.
Second, there are other incentives besides copyright. For example, if I pay you paint me a portrait, the commission was your incentive. You can't exploit your copyright to sell copies of the painting, since it isn't in your possession. And I'm not planning to make copies, so I don't need to get a license from you to do so. The work still gets created, but not because of copyright. Works created and published for non-copyright related reasons are actually extremely common. Slashdot posts are a decent example; I bet not a single post would not have been written if they were not copyrightable.
Third, the vast, vast majority of copyrights have zero economic value. Of the teensy tiny minority that do, the vast majority of those have all of that value realized immediately after publication in a given medium. For example, a movie will sell more tickets at the theater on opening weekend than the next weekend, or the weekend after that. Eventually it does poorly enough that it has to go to the second run theater, where the same cycle occurs. Then it goes to pay-per-view, and the same thing happens. Then DVD sales and rentals, and again, it's popular at first, and then does worse and worse. With books, the time span is a few months. For a morning newspaper, the time span is a few hours; people don't buy old news.
So this means that your reason is bunk. It doesn't matter how long the author lives, it only matters how long the work has material copyright-related economic value. Fourteen years would be generous! For most works it's far less time, if there's any value at all. A work that retains value for a long period of time is as rare as winning lottery tickets.
You would surely say that anyone who tried to provide for themselves or for their family by buying a box full of lottery tickets was a fool, right? That if you're worried about what happens to your survivors, you should act responsibly, and get life insurance, save and invest your money carefully, and support social welfare programs if all else fails. Leaving behind copyrights would be foolish. And if the work was valuable, then the cash money that was wrung from it should've been spent in a smart manner so that the family wouldn't need to pray that there's anything left in the copyright.
So not only do we want copyrights to be as short as possible while still incentivizing authors enough, merely as a matter of public policy, we also want them to be short so that authors will not act foolishly and rely on them when they shouldn't. We certainly never want to suggest that they should last a long time so as to help the widows and orphans, since we know that they almost certainly won't help one little bit! It is grossly irresponsible to pretend otherwise.
Copyright holders are rarely the millionaires you seem to think they are.
I agree. But long copyrights don't help them, and do hurt the rest of us. That being the case, we might as well shorten them.
the sorts of people that need long-term protection because chances are they aren't making a lot of money off of their work
And again, that's where you have it wrong. Long term protection will not help them to make a lot of money off of their work except in incredibly rare circumstances. Just because you do it for longer doesn't mean you can wring blood from a stone.
While copyright is in play, it provides the protection necessary; after a work is released into the public domain, there is no longer any grounds to demonstrate injury.
That's an interesting position, though certainly unlike that of your typical attribution-right proponent. However, your first statement isn't true. I could certainly claim that a work was mine, or was not yours and still not actually infringe on that work. E.g. I sell copies of a book you wrote pursuant to section 109, but with a sticker bearing my name on top of wherever your name appears.
You came into that right by a rental license (e.g. a library) or by statutory license (e.g. purchasing a copy).
There is no statutory license regarding purchasing copies. And the only possible license that exists for rentals is that the copy rented is, well, rented, and ultimately needs to be returned. That's a license between the renter and rentee, however; the copyright holder isn't involved.
Lawful access does not entail ownership; indeed, it is a limited right to use, with all others reserved by the rightsholder. Upon the expiration of copyright, owners of legal copies still do not gain those ownership rights--the copyright holder merely loses the ability to enforce them.
Who said ownership? You cannot own a creative work anyway. If you could, we wouldn't need copyright, which somewhat approximates what it would be like if that were possible. If you let me see your poem, then I've had access to it. So long as I've got a decent memory, I can make my own copy of the poem, and I'd own that copy. Copyright might bar me from doing so, while and if it is in force as to the work, but as soon as it expires, then I can go ahead and make that copy (and if it isn't applicable, I can make the copy while it subsists). It is exactly the same scenario as if the work had been in the public domain at the time you showed me the copy.
As for your second point, it's just baloney. Copyright is purely a bundle of exclusive rights, and I never said that the public acquired them. It would be absurd if they did. I said that all the other rights -- the right to use the work, to make copies of the work, etc. -- the rights that copyright has to stand in the way of -- are acquired along with access. And they are.
Irrelevant. The state of technology didn't exist.
AFAIK there were no material changes in printing press technology between 1616 and 1710. Certainly plenty of people printed Shakespeare's works, though probably not Shakespeare himself.
The procedural mechanism by which copyright operates dates back to the 15th C., long before the Statute of Anne, which indeed itself is only a precursor to modern copyright.
The Statute of Anne is the first modern copyright law, and really there is universal agreement on this point. I shudder to think of what you would suggest it is. As for the 'procedural mechanism,' whatever you mean by that, the Stationers' Copyright dates back to the mid-16th century, under Queen Mary. I can't imagine what you're thinking of that predates that. The Venetian patent law? It's a hell of a stretch.
Copyright law is nothing more than a set of statutory and compulsory licenses
I like the redundancy there. Anyway--
Copyright law is nothing more than a set of statutory and compulsory licenses extended by force of law from authors to possessors of copies.
No.
Copyright law is a means of promoting the public good in which the people, via their servant, the state, grant a temporary, limited monopoly in the form of certain exclusive rights to authors with regard to their works that meet certain criteria. It is a classic quid pro quo: The public temporarily agrees to refrain from certain actions, giving the author control over whether they can be done, and the author provides a work, which will ultimately fall into the public domain. The public winds up winning, in that it permanently gets a valuable work in exchange for a rel
even that final strand, attribution, may never be taken from the author, so every transition from private to public is incomplete.
Sure it can be. In the US, for example, there's usually no right to attribution, and what there is is quite new. Even publicity claims are rather limited in what they can be used for, compared with your broad, but unsupported claim there.
Further, your Romeo and Juliet example does not have any elements of a natural right. You are not the originator of the work, and you did not have those rights at the creation of the work. You came into rights based on the operation of law as the author gradually shed those rights. It operated quite a bit differently in terms of mechanics in the Bard's day, but still fundamentally the same.
What operation of law? Nowhere in the Copyright Act does it say that a person can have the right to read a book, for example. Since it isn't mentioned, that right must have a more fundamental origin. That would make sense, since many works are not copyrighted or copyrightable, and it would be impractical to have to separately deal with the same rights as to those works.
Simply put, if someone has lawful access to a work, then they are in possession of the full panoply of non-exclusive rights with regard to that work. Copyright might temporarily put the kibosh on some of those rights, but that doesn't mean that the rights aren't there.
You seem to think that the Copyright Act doles out rights to the public. Well, it doesn't. The closest it gets is to chip away at the exclusive rights that it previously granted to authors. There's no section that says that you can read a book, or privately listen to music, or do anything at all with a public domain work. All it says is that the copyright holder can prevent you from doing certain things, in the context of the age-old principle in our law that all is permitted if not forbidden.
Also, copyright as we know it didn't exist at all in Shakespeare's day. The stationers' copyright was a means of censorship and for the printers to assert a monopoly even against authors. The Statute of Anne was a sea change in copyright.
You cannot claim a natural right to extract profit on the contemporaneous work of others
Yes I can, and I do. It's a well-known phenomenon. I can offer up countless examples, if you really need them, but I'm sure you can think of some scenarios. Something you might want to bear in mind is that there is no natural right to property (much less copyright) with the possible exception of that which you can personally defend from others acquiring access to or possession of.
There simply is no fundamental right to the work of others.
Be more specific. There is no natural right to force others to create a work, or to grant you access to a work which they have created and control access to. If the work is created, though, and they allow you access to it, then only some artificial regime such as copyright could possibly stop you from doing as you like.
Copyright law is a license.
No it is not, though it does contain some statutory royalty schemes here and there. Personally, I'm not terribly fond of them; I'd prefer for some users to be able to use works for free, and others to have to negotiate. I grant that this might not have been as reasonable in times past, but I think it is manageable now.
An unlicensed reproduction is what? It is a copy not permitted by copyright law and not permitted by a superseding license agreement. If copyright law were not a license, "unlicensed" simply could not have a substantive meaning.
Wrong again! An unlicensed reproduction is merely one which the copyright holder has not permitted. It is the same as unauthorized. While all licensed uses are noninfringing, the converse is not true. For example, if I make a copy of some work (say, a time shifted copy), then this may be a fair use, and thus noninfringing, but it is certainly unlicensed, and the copyright ho
Natural law is a perfectly valid form and basis of copyright
Oh, I disagree. It winds up being nonsensical. I'm not aware of anyplace that uses such a basis for their copyright law and actually lives up to it. As near as I can tell, there seems only to be the utilitarian basis that we have in the US, and which is the original basis from the Statute of Anne, and there is the ill-conceived hodgepodge of talk about natural rights which is nevertheless built upon a badly-implemented utilitarian system such as in France.
The US has copyright for the sole purpose of encouraging creation of works
Well, no, we have it for promoting the public interest, part of which is the creation and publication of works, but an equal part of which is also having works in the public domain.
As for Berne, it was a bad idea originally, it's a bad idea now, and the best thing that the US can do is to leave Berne and get our own house in order. There's a reason we stayed the hell out of it for so very long, and I just wish we had had the strength to have continued to stay out.
I think that if it happens in a church it is a private performance unless they air it on TV or try to use an event to gain church-members.
No, that it happens in a church is really irrelevant. Ditto if it was in a theater or in a private home. It's the people that make it public or private, not the venue. If anyone can come, or if there's more people there than just a family and its normal circle of friends, then it's public.
Actually, I hate to say it, but the entire thing falls under freedom of religion.
No, I don't think so. This is neither targeting nor aiding religious groups. It's neutral. If any group, whether religious, or social, or whatever, had an otherwise identical party at their regular meeting place, it would be treated in exactly the same manner. It might impair worship (though this is not a credible argument unless the congregation has a football on its altar, really) but it's so incidental that it would be treated like the impairments of religion that come with drug laws.
The law contains a special exemption for sports bars.
Well, actually you're thinking of 17 USC 110(5)(B)(ii), which is for businesses, specifically restaurants and bars. They can be dry and still qualify. Other kinds of businesses are specially dealt with at 110(5)(B)(i). And everyone else is covered by 110(5)(A) (the "homestyle" exception), which is what the church really should have relied upon, provided that they had the right kind of AV equipment and didn't charge admission.
The law as written clearly makes any place that supports the consumption of alcohol superior to ones that believe in temperance as a religious principle, and thus clearly is unconstitutional.
No, and that's just stupid. Feel free to challenge the law, but I predict that you'll find it to be religiously neutral. Congress is dealing here with the dilemma of the unlicensed performance of works in businesses, including, but not limited to, restaurants and bars, which are especially known for doing this. Churches aren't businesses (some might be cynical about this, but remember that a church would not claim to be for profit if it wanted to keep its tax exempt status, and so would not try to claim a copyright exception for businesses) and so don't really fall within the area of concern.
If a church is "public" or "private" could well depend on exactly how it is run.
No, that's not what is meant. The relevant legal definition is this:
To perform or display a work "publicly" means-- (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered;
If the church is open to the public, or if there is a substantial number of persons outside of a normal circle of a family and its social acquaintances gathered, then it's a public performance, regardless of how the church is actually run.
I suppose you could have an extremely insular church, with a small, very tightly-knit congregation (basically a cult), and get away with it, but that's probably not common.
the language... describes exactly what the broadcaster is doing (not the church)
Both, actually.
The broadcaster is performing the work by transmitting it, and the viewer is performing the work by displaying it. It could be clearer, I admit.
Furthermore, the definition given of "perform" makes it clear that the act occurs at the origination (the actor, dancer, football player, broadcaster).
No, the viewer does this to, i.e. by causing the audiovisual work to appear on the screen because he has tuned into it.
Where's the definition for "display?
To "display" a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.
Note that last one. When you watch an audiovisual work, you generally perform it. When you show slides from it, you display it. Or to think of it another way, performances deal with works of art for which time is a component, e.g. music, movies, plays. Displays are static, e.g. hanging a picture up on a wall, showing a slide, putting a book on a shelf.
and how does prohibiting a group of people from watching together, when each can readily watch individually, "promote the Progress of Science and useful Arts," the basic requirement for any US copyright law to be Constitutional.
Actually, it's just science; the useful arts are what patents promote the progress of. Copyright promotes progress by encouraging the creation and publication of works which otherwise would not be created and/or published, and then placing those works into the public domain as soon as possible, and until then, as near as possible. The mechanism of encouragement is an economic monopoly having to do with the work, i.e. copyright. One way for some authors to make money from their work is to publicly perform it or to license others to do so. For example, a playwright might charge a fee for people to stage his play in a theater for a paying audience. However, it was felt that private performances (such as a group of theater fans getting together and putting on the play themselves, in a house, purely for their own enjoyment, without an audience) could not be a material source of revenue for the author. Since imposing copyright on such performances would yield no encouragement (in the form of money) and would be a restriction on the public, it would go against progress, and so, should not be done.
While that could happen, that's not how it happened in this case. The first ten amendments are generally thought to act in harmony with the main body of the Constitution, having really only been in the form of amendments because it was easier than resubmitting the Constitution to the states, with the addition of the civil liberty protections. No court would ever think that the First Amendment abolished copyright merely by virtue of having been passed shortly after.
No, it does not. The creator has a natural right to the entirety of the work. Copyright does not grant the creator exclusive control--that he already has. Copyright introduces protections for those creators who choose to produce copies, as well as protections for the buyers of those copies.
Well, that's not the case, actually. First, this can be seen in the interplay between free speech and copyright. I think that we'd both agree that there is a natural right of free speech. This right must certainly include the right to repeat what others have already said. If the government were to attempt to prevent me from, say, performing Romeo and Juliet, no one would even challenge that I could assert my free speech rights against them, though I hadn't myself written a word of what I wanted to say. Copyright, however, is not the right of an author to speak or publish his work (that's the free speech right) but is instead the right to prevent others from doing so. How could two diametrically opposed rights both be natural rights? It's impossible to honestly make the claim.
Certainly in the US, no credence has ever been given to such arguments. In Wheaton v. Peters, the Supreme Court stated that while some states may -- or may not -- have granted copyrights to unpublished works at common law, as they found wise, Congress had the only word when it came to published works. And Congress had not found there to be any preexisting natural copyright to protect, but had instead granted federal copyrights that had simply not existed previously:
Congress, by the act of 1790, instead of sanctioning an existing perpetual right in an author in his works, created the right, secured for a limited time, by the provisions of that law.
The Supreme Court has never backed away from this position either, as seen in Fox Film Corp. v. Doyal (internal citations omitted):
The Constitution empowers the Congress 'to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.' The production to which the protection of copyright may be accorded is the property of the author and not of the United States. But the copyright is the creature of the federal statute passed in the exercise of the power vested in the Congress. As this Court has repeatedly said, the Congress did not sanction an existing right, but created a new one.... A copyright, like a patent, is 'at once the equivalent given by the public for benefits bestowed by the genius and meditations and skill of individuals, and the incentive to further efforts for the same important objects.'
Without a license, there is no access to the content.
Of course there is. They're broadcasting the work far and wide. They're giving the access away. They're not even undertaking the first step to bar anyone from tuning into it. There's no license as far as the ordinary viewer need concern himself. Copyright law still applies, so if you're acting in some infringing fashion, then you would want a license. If you're not, then you don't need a license to begin with. There is no reading license, or listening license, or watching license. If access were controlled, then there could be an argument made, but in this case, where it is freely broadcast to hundreds of millions of people in the clear, with the intent that they should tune into it, the access argument is hilariously unfounded.
The end viewer comes into possession of a licensed copy
No, a copy is a tangible medium in which a work is fixed. A broadcast doesn't qualify. And, MAI v. Peak notwithstanding, there is actually very good reason to believe that an ordinary TV doesn't qualify either, as it is too transitory. (See the Congressional notes from 17 USC 102, and don't bother raising the point of CRT memory or mercury delay lines, as I know just how annoying and silly the MAI decision is)
Maybe in his office, but he better pay up if he puts the radio in the waiting room.
Well, depending on who else was in his office, that might be private anyway. No, this exception is meant for this sort of thing. A canonical example is a restaurant with an ordinary stereo on a shelf, tuned to a radio station.
To me, ad-hoc speaks of randomness, of improvisation, of Brownian motion and Gaussian distributions, of unevenness and arbitrariness through lack of design.
I don't see the randomness aspect; it's just that these laws tend to develop in an organic fashion, following both the preexisting laws, to preserve continuity, and adding or altering them to deal with the changes that have since come about. And the changes are often driven by those who would gain from them, rather than those who seek a stable, consistent, useful system.
Now, let's examine patent law. This is applied to inventions, non-obvious innovations (and certain classes of obvious innovation, as there is case law upholding patents that are mind-blowingly obvious), business methods, software algorithms (but not mathematical algorithms, even though these are functionally the same) and decoded genes, but not all classes are recognized in all countries, classes that are recognized aren't necessarily recognized the same way, and even when they are, patent authorities have a degree of flexibility in what they recognize.
Modern US patent law deals with useful, novel, nonobvious inventions. Most of the things you list are just flavors of invention, such as a business method. Things have been different in the past, though; often, you could get a patent by introducing a technology that was well known elsewhere. That's not the worst idea, but it's not one we've pursued, and probably isn't that important given how small the world has become.
What about trademarks? There is a world of difference in meaning, intent and quality between a trademark used to represent a common source (eg: the stamps used to mark goods for trade as being authentic), a trademark used to represent a specific product (Unix is a trademarked name), a trademark used to describe something (it's amazing how many technical books and software packages have trademarks for something descriptive) and a trademark in the form of some expression (you can't play an electric guitar with a bow, without violating trademark law).
No, trademarks always indicate that something so marked has come from a common source with other so-marked goods or services. Again, you're just looking at different flavors of them, since there are so many different sorts of identifiers. (And in the case of the UNIX mark, it's probably gone generic by now. Common use is what is controlling, and since 99.44% of people probably think that any unixy software, e.g. Linux, BSD, is a unix, then that mark just isn't viable anymore)
Ok, so if they are all so different, could they be unified?
Why?
I suppose we could try to unify all branches of the law so as to reduce everything to various facets and aspects of a single underlying universal legal principle. But there probably isn't one, and it sounds like an astounding waste of time that wouldn't actually accomplish anything. Outside of someone having OCD about it, I just don't see any point whatsoever.
Current unification methods have nothing to do with universal principles or fundamental components, so I seriously doubt the competence of any politician to produce such a specification, but I am willing to accept you could do it.
I assume that by 'you' you mean a generic 'you,' and not me, specifically.;)
Sure it does. Copyright law doesn't "give" any rights to the copyright holder at all. It takes them away.
No, copyright law does grant exclusionary rights to the author. While copyright doesn't grant the author the right to create or publish a work (which is covered under freedom of speech and the press to the extent that they apply), it does grant to him an artificial right to prevent others from doing certain things with that work.
Those exclusive rights are themselves subject to some limits, but that's really a matter of defining the extent of the rights.
The broadcast is not licensed for public performance on screen sizes larger than 55".
With regard to the viewer, the broadcast is not licensed at all. There may be licensing arrangements involving the NFL, the stadium owner, various television networks and providers, etc., and perhaps even a few entities that do engage in public performances of the work at the 'showing it on a tv screen' level, but there's no relevant license touching the average viewer.
You don't possess any rights to the broadcast
Sure I do. My rights guaranteed by the First Amendment permit me to make copies of the broadcast, distribute them, engage in public performances, etc. in precisely the same way that I can do so for works I create, or works which are in the public domain. The only difference is that in the case of this broadcast, the copyright holder temporarily has a limited right to prevent me from exercising my more fundamental rights. His right does cover public performances of the work I might engage in, but it doesn't cover private performances.
The counterpart to this is private performance, which is protected by copyright for the users.
Well, no, it's not. It's just ignored, since it is outside the ambit of copyright altogether. Copyright regulates private performances exactly as much as it regulates interstate highway speed limits: not at all.
This is not a private performance
I agree. I never said it was a private performance, I merely corrected the earlier post which mistakenly claimed that private performances fell under copyright. They don't.
Yes, I know. I think it's silly in this particular case, but the NFL does have the superior legal position here. I wasn't saying otherwise, I was just pointing out the mistake in the earlier post.
IP law is, frankly, a mess. Either unify all the concepts into one single notion, OR sub-divide the existing categories into wholly uniform concepts.
We did. There's copyright law, patent law, trademark law, and trade secret law. Plus a couple of other minor areas. None of them have anything to do with one another; there is no single underlying principle. And they were never lumped together as 'IP' until quite recently by folks with suspicious motives. I practice in some of these fields and I avoid the 'IP' term as much as I can, since it is terribly inaccurate and misleading.
I would argue for unification, partly because you are dealing with underlying principles but also because if the unification is valid and correct, it will remain valid and correct for any future technologies within the bounds for which it is defined.
I disagree. First, that's been responsible for a lot of the current situation. Second, there isn't a shared principle. Third, they're all pretty ad-hoc in a lot of respects, and deal with wildly divergent and non-overlapping subject matter. It's a lot easier to have sensible laws in these fields if they can just ignore the others, which wouldn't be substantially affected anyway.
Slashdot Mirror
I've never understood why the Supreme Court does not use that as a test of what is a reasonable copyright term.
Three reasons.
First, the issue rarely arises, so they haven't put as much thought into it as they would for some part of the law that is frequently invoked. Second, they, like most people, are fairly susceptible to the idea that the side of authors and copyright-oriented publishers is more apt to be in the right on a copyright case than people who want the works to be in the public domain where everyone can use them in an unrestricted manner, for free. As Lessig said, it is hard to win a case against all the money in the world.
But third, and most importantly, the Court is aware that the judiciary is a co-equal branch of government with Congress, and is neither superior, nor inferior. Thus, it's inappropriate for them to act as a super-legislature, approving or vetoing laws merely because they think they're wise or foolish. They have to be more circumspect in their duties. So they tend to give Congress a decent amount of leeway. There are limits on Congress, but they're not as constrained as some might hope, wanting the courts to permit only wise laws to survive scrutiny.
But as you increase the copyright term, you get diminishing marginal returns. Eventually the yield in creative output is outweighed by the opportunity cost of not allowing society to have unencumbered use of the material. A law that extends copyright beyond that balancing point should be considered unconstitutional.
That's about right. Note, however, that the term length of copyright is only one factor. The scope of copyright (what is protected, what isn't, what exceptions there are to that protection, etc.) is also part of the analysis. Broad copyright with few exceptions is bad just as very long copyright terms are bad.
Additionally, you've set the balancing point too far out, to the benefit of the copyright maximalists. The baseline for copyright is not whether the public benefit of copyright matches the public detriment incurred by having it, but rather it is when we have no copyright at all. If a copyright law produces a net public good less than if there was no law at all, then we'd clearly be better off without the law in question. I believe that there would be more of a net public good at that point than the one you describe (since there are, after all, other incentives for authors besides copyright, and for all works to be in the public domain is entirely in the public interest).
Of course, the ideal we're aiming for is not merely a law which is equally as good as, or only marginally better than, no law at all. What Congress should aim for is whatever copyright law produces the greatest public benefit and the least public detriment, i.e. the greatest net public good. Just barely permissible isn't really going to cut it.
Fortunately, of course, while the Court allowed the CTEA to stand, they were skeptical of it (I believe that most of the justices didn't think it was actually a wise law, just a constitutional one), and indicated that they probably wouldn't let it slide; infrequent retroactive extensions might be okay, but a pattern of 'Add twenty years every twenty years' wouldn't be. We'll find out soon enough, though (unless Congress comes to its senses).
There are only so many billable hours in a week.
;)
See, now there's a problem the law could fix!
Well, that seems unlikely, given the actual wording of Art. III. Heck, George Washington once asked the Supreme Court for advice and, based on the cases and controversies clause, they basically told him to fuck off. It's an important part of the separation of powers, after all; it keeps the courts from interfering with the political branches, and keeps the courts honest, having been uninvolved with the drafting of the laws on which they'll later be called upon to interpret. Having stuck with this principle for a few centuries now, I doubt they're going to change.
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"
Not that part. The privileges and immunities clause was basically killed off in the Slaughter-House Cases in the late 19th century, and hasn't amounted to anything since. The main working part of the 14th Amendment is the due process clause, closely followed by the equal protection clause.
It's the due process clause that is relevant here:
The Supreme Court found that many of the rights protected in the First through Eighth Amendments are among the liberties mentioned in the due process clause. Thus, no state can infringe on those liberties without due process. In effect, then, those amendments become applicable to the states. This is known as 'incorporation.'
For various reasons, it's occurred in a piecemeal fashion. Rather than just decide that all of those rights are incorporated by the 14th Amendment, the courts have only found certain rights to, as needed. Of course, very nearly all of them have been incorporated by now, but there's still some holdouts of varying importance. Wikipedia has a decent list.
And of course, there is evidence indicating that the framers of the 14th Amendment deliberately wanted incorporation, so I'd hardly say that it's a total fabrication of the courts.
No, it wouldn't. If you want to produce your own copy, that's fine. ... Copyright generally allows copies to be made, so long as you don't break a protection measure or distribute said copies. There's really no argument to make as to how you are constrained by that.
Read the language of the statute again: making a copy is infringing, per 17 USC 501 and 106(1). There are various exceptions to this, but they're narrow and not always applicable. There certainly is no such thing as a broad personal use exception. Copyright law is about more than mere distribution.
The change is between the days of the printing press, when books in the 17th C. were still only in the hands of what we'd consider the upper middle class, and 2008.
Hey, you're the one who said that for technological reasons, there was no copyright in the time of Shakespeare. Since copyright law was invented less than a century later, and there was no material change in technology in the intervening time, your claim must be false.
Without this arrangement, most artists would not have done so, and would have continued in the business of selling originals.
No, that's wrong. Remember, copyright only applied to books and maps originally. There's really no market for 'originals' there; they're typeset or engraved and printed up and sold widely. It's true that copyright was intended to get authors to create and publish works which would then enter the public domain, but the alternative was basically that the authors who needed that incentive would otherwise not create at all. There was no other market or alternative.
The fine arts didn't get copyright until well into the 19th century. Even there, it has never really amounted to much; prints and reproductions of a work of fine art are not nearly as valuable as their originals, and until fairly recently, it was usually the owner of the original that had the right to make those, not the actual artist. Anyway, it remains true that fine artists really don't need copyright; an original Van Gogh is worth a fortune, a postcard with his sunflowers on it is worth almost nothing. And of course, originally, his paintings were worthless too, not because of a lack of copyright, but because no one liked them. Copyright failed to incentivize Van Gogh and didn't play a role in his posthumous success.
Frankly, the fine arts are an area where we could probably substantially reduce copyright and see no ill effects for it.
The notion of promoting the public good has never meant contemporaneous promotion, but merely the eventual seeding of the people with broad access.
If by 'broad access' you mean 'absolute rights' then sure. I know perfectly well that copyright is about delayed gratification. That's fine, so long as the gratification is great enough to make up for the delay and for the cost of the rights to begin with.
Jefferson was not opposed to patents.
He is well known to have been skeptical about them. Witness his back and forth with Madison while the Constitution was being written. So long as they served the public interest, he didn't have a problem with them, but he was well aware that without that, there was no reason for the public to suffer the embarrassment of such monopolies, and that patents and copyrights were unusual in being tolerable monopolies of any kind.
to illustrate the difference between the natural right a man has in the work of occupation
Given that property was an area in which Jefferson differed from Locke, I think that your claim of natural rights there is unfounded; both as to Jefferson and reality. Property is a consensus agreement to serve the public good, no more, no less.
Copyright law does prohibit copyright holders from interfering, because it defines the scope of their power to act against copy owners.
No, it doesn't, provided that they have something to hang that interference upon. Copyright doesn't work, but as you conceded, access w
That's my point, though. Some things would be created far less if the copyright were short. If it takes a year to write a book and six or seven years to shop it around to publishers (not unusual for new authors), a ten year copyright term would basically mean that few would consider becoming a novelist.
The problem is, that I suggested that there would be a lesser form of copyright for unpublished works, and regular copyright for published works. The former would have a term subsisting from fixation of the work until, the sooner of 20-30 years later or publication. The latter would have a term subsisting from publication (provided that the work was registered properly no later than one year after publication and bore certain indicia of copyright during that year, if it wasn't registered immediately, to help put the public on notice).
So the timeframe you suggest would be no problem whatsoever. It would only be an issue if you took an ungodly long time to make the work, in which case you could still get the regular copyright upon publication anyway.
I assume what you meant to say was that there is a difference between a work for hire---a work in which the copyright is held by a corporation because the creator was under contract---and a work owned by a corporation because the other transferred his/her rights to the corporation.
No, I meant what I said. When a work is made for hire, the employer _is_ the author; it's little different than if you dictated a book to a secretary. The secretary's involvement doesn't mean that they are an author. Plus of course, very few works are works made for hire due to a contract; employment is the normal route due to the details of the statute.
If it is just something that the person did for fun, it seems perfectly reasonable that he/she might look back at it many years later and say, "Hey, I should try to publish that." That person should have the right to do so without having those rights stolen by someone who happened to dig a draft copy out of his/her trash bin.
If it is something that was made just for fun, then copyright was not an incentive to cause the author to create that work. Ideally then, he shouldn't get a copyright. I'd be willing to give him one if he'd at least publish, but until he does, the public would be equally as well served if anyone published the work. So it's fine if someone gets a draft in a reasonable way (e.g. not by breaking in to the author's home) and publishes it. They couldn't get a copyright, but at least we'd be better off.
Nor should we give the author forever to decide to publish. There are plenty of excellent works where it would be great if they were published, but the author has no intention of doing so. Why should we wait for them to come around, if they ever do? Why shouldn't we help the third-party publisher with an assurance that he can't be sued if he obtains the MS in a reasonable fashion? Otherwise we run into the bizarre outcome of giving the most protection to works that never benefit the public by being published and which were not created due to the incentive of copyright! That's just absurd.
Further, if someone breaks into your house and steals something that you wrote twenty years ago, that person (or someone who gets it as a result) should not be able to make a profit from it merely because you haven't chosen to make it public.
Yes, but only because he broke in. If I had given him a copy and then ignored the work, then that would be a different matter.
To protect the privacy rights of individual content creators, as long as you are alive, your unpublished creations should be yours and yours alone.
The big problem with your idea is that the public policy driving copyright couldn't give a rat's ass about privacy. In fact, it wants as many works as possible to be created and published and ultimately enter the public domain, and to grant protection to no, or as few works as possible, and for that protection to be as minimal as possible, to further the goal of getting works in the public domain.
Do you see the Copyright Clause making any mention of privacy? I don't.
Perhaps he means that he wants the same time limit to apply to everyone. If he dedicates them to the public domain, then he's at a disadvantage with everyone else. If that's the standard time limit, however, then he's in the same boat with everyone else, and there's no comparative disadvantage for him.
Why, then, should a song get almost five times the protection? (I feel this way even speaking with my songwriter hat on, BTW.)
Well, that's sort of apples and oranges. Patents don't last as long (originally the patent term was 14 years, then 17, and recently 20, and we've altered when the clock starts) but the protection is much broader, and on different subject matter.
Still, I do agree that both should be as short as possible while still encouraging the creation or invention of as much as possible. Frankly, I don't care whether a work was easy or difficult to create. If about as many still would've been created had the rewards been less, then reduce the rewards; if many more would be created if the rewards were greater, increase the rewards. It's all about getting the most bang for your buck. This is why I'd like software to have extremely short terms, maybe five years, tops; because I bet it would still get written. The revenue from years 6-50 (or more) is too little to matter much, so that's not much incentive.
Corporate-held copyrights (works for hire) should be much shorter
First, I disagree. Second, there is a difference between works made for hire (where the employer is the author) and works where a corporate entity holds the copyright but a natural person was the author.
Unpublished works should be protected by copyrighted until 10 years after the creator's death, or for up to twenty years in the case of a corporate work for hire.
Why? Copyright is meant to cause works to be created and published that otherwise would not have been. If a work is unpublished because it's still being created or prepared for publication, then fine, protect it. If a work isn't really meant to be published, don't protect it. At that point, we clearly aren't getting the author to do what we want, so we might as well remove obstacles so that some helpful third party will do it. Likewise, why so long? A decent but not overly long period of time is better. If it takes you a century to create a work, then screw it, that's too long to bother granting protection. If you can't manage in 20-30 years, you're probably hopeless.
Sounds good to me. Besides, the middle man in your example has no monopoly on that position. Nothing prevents the author, or me, or anyone else from hawking the exact same thing. For example, I can go to the bookstore and buy a copy of Hamlet, or I can go online and download a copy for free, and I can sit outside the bookstore and give copies away, or whatever. So can Shakespeare. Well, zombie Shakespeare, anyway.
Also, by mandating that authors who want a copyright on their work deposit a copy of the work at the Library of Congress, we can ensure that there is always a copy preserved and available. Though really, redundancy is the best means of preservation. Libraries and other central repositories have a bad habit of getting burned down. If everyone has a copy, it's more likely that the work will survive for the long term. This is precisely how we came to have most works from antiquity.
Don't worry about it. In 99.44% of cases, the work isn't of any value anyway (whether valueless originally, or has lost whatever value it once had), so the family isn't helped one iota. It's like giving them a box full of losing lottery tickets. The public is still harmed because the work isn't in the public domain, but the family isn't helped because the work is of no economic value. Everyone loses!
Except for the rare lottery winner who has a work that is valuable. Of course, that work was probably always valuable, so they were probably well provided for even if the copyright didn't last so long, making the whole system just that much more infuriating.
Personally, I think that if we are concerned with the widows and orphans then we ought to encourage people to save money, invest wisely, procure life insurance, and offer social welfare programs as a safety net. The advantage is that this works for everyone, rather than the extremely teensy tiny minority of families where the work that they were left has long-term economic value.
Copyrights should last 70 years because that's probably how how the artist will live after they've made it, and possibly help their family after they're dead.
I'm sorry, but that's a really stupid argument.
First, copyright isn't intended to help authors or their families. It is intended to get them to create and publish the work and otherwise to protect it as little as possible, for as brief a time as possible. That is, we want the maximum incentive for the minimum cost. If most authors would be incentivized by five years of copyright, then fifty would likely be excessive due to the problem of diminishing returns.
Second, there are other incentives besides copyright. For example, if I pay you paint me a portrait, the commission was your incentive. You can't exploit your copyright to sell copies of the painting, since it isn't in your possession. And I'm not planning to make copies, so I don't need to get a license from you to do so. The work still gets created, but not because of copyright. Works created and published for non-copyright related reasons are actually extremely common. Slashdot posts are a decent example; I bet not a single post would not have been written if they were not copyrightable.
Third, the vast, vast majority of copyrights have zero economic value. Of the teensy tiny minority that do, the vast majority of those have all of that value realized immediately after publication in a given medium. For example, a movie will sell more tickets at the theater on opening weekend than the next weekend, or the weekend after that. Eventually it does poorly enough that it has to go to the second run theater, where the same cycle occurs. Then it goes to pay-per-view, and the same thing happens. Then DVD sales and rentals, and again, it's popular at first, and then does worse and worse. With books, the time span is a few months. For a morning newspaper, the time span is a few hours; people don't buy old news.
So this means that your reason is bunk. It doesn't matter how long the author lives, it only matters how long the work has material copyright-related economic value. Fourteen years would be generous! For most works it's far less time, if there's any value at all. A work that retains value for a long period of time is as rare as winning lottery tickets.
You would surely say that anyone who tried to provide for themselves or for their family by buying a box full of lottery tickets was a fool, right? That if you're worried about what happens to your survivors, you should act responsibly, and get life insurance, save and invest your money carefully, and support social welfare programs if all else fails. Leaving behind copyrights would be foolish. And if the work was valuable, then the cash money that was wrung from it should've been spent in a smart manner so that the family wouldn't need to pray that there's anything left in the copyright.
So not only do we want copyrights to be as short as possible while still incentivizing authors enough, merely as a matter of public policy, we also want them to be short so that authors will not act foolishly and rely on them when they shouldn't. We certainly never want to suggest that they should last a long time so as to help the widows and orphans, since we know that they almost certainly won't help one little bit! It is grossly irresponsible to pretend otherwise.
Copyright holders are rarely the millionaires you seem to think they are.
I agree. But long copyrights don't help them, and do hurt the rest of us. That being the case, we might as well shorten them.
the sorts of people that need long-term protection because chances are they aren't making a lot of money off of their work
And again, that's where you have it wrong. Long term protection will not help them to make a lot of money off of their work except in incredibly rare circumstances. Just because you do it for longer doesn't mean you can wring blood from a stone.
While copyright is in play, it provides the protection necessary; after a work is released into the public domain, there is no longer any grounds to demonstrate injury.
That's an interesting position, though certainly unlike that of your typical attribution-right proponent. However, your first statement isn't true. I could certainly claim that a work was mine, or was not yours and still not actually infringe on that work. E.g. I sell copies of a book you wrote pursuant to section 109, but with a sticker bearing my name on top of wherever your name appears.
You came into that right by a rental license (e.g. a library) or by statutory license (e.g. purchasing a copy).
There is no statutory license regarding purchasing copies. And the only possible license that exists for rentals is that the copy rented is, well, rented, and ultimately needs to be returned. That's a license between the renter and rentee, however; the copyright holder isn't involved.
Lawful access does not entail ownership; indeed, it is a limited right to use, with all others reserved by the rightsholder. Upon the expiration of copyright, owners of legal copies still do not gain those ownership rights--the copyright holder merely loses the ability to enforce them.
Who said ownership? You cannot own a creative work anyway. If you could, we wouldn't need copyright, which somewhat approximates what it would be like if that were possible. If you let me see your poem, then I've had access to it. So long as I've got a decent memory, I can make my own copy of the poem, and I'd own that copy. Copyright might bar me from doing so, while and if it is in force as to the work, but as soon as it expires, then I can go ahead and make that copy (and if it isn't applicable, I can make the copy while it subsists). It is exactly the same scenario as if the work had been in the public domain at the time you showed me the copy.
As for your second point, it's just baloney. Copyright is purely a bundle of exclusive rights, and I never said that the public acquired them. It would be absurd if they did. I said that all the other rights -- the right to use the work, to make copies of the work, etc. -- the rights that copyright has to stand in the way of -- are acquired along with access. And they are.
Irrelevant. The state of technology didn't exist.
AFAIK there were no material changes in printing press technology between 1616 and 1710. Certainly plenty of people printed Shakespeare's works, though probably not Shakespeare himself.
The procedural mechanism by which copyright operates dates back to the 15th C., long before the Statute of Anne, which indeed itself is only a precursor to modern copyright.
The Statute of Anne is the first modern copyright law, and really there is universal agreement on this point. I shudder to think of what you would suggest it is. As for the 'procedural mechanism,' whatever you mean by that, the Stationers' Copyright dates back to the mid-16th century, under Queen Mary. I can't imagine what you're thinking of that predates that. The Venetian patent law? It's a hell of a stretch.
Copyright law is nothing more than a set of statutory and compulsory licenses
I like the redundancy there. Anyway--
Copyright law is nothing more than a set of statutory and compulsory licenses extended by force of law from authors to possessors of copies.
No.
Copyright law is a means of promoting the public good in which the people, via their servant, the state, grant a temporary, limited monopoly in the form of certain exclusive rights to authors with regard to their works that meet certain criteria. It is a classic quid pro quo: The public temporarily agrees to refrain from certain actions, giving the author control over whether they can be done, and the author provides a work, which will ultimately fall into the public domain. The public winds up winning, in that it permanently gets a valuable work in exchange for a rel
even that final strand, attribution, may never be taken from the author, so every transition from private to public is incomplete.
Sure it can be. In the US, for example, there's usually no right to attribution, and what there is is quite new. Even publicity claims are rather limited in what they can be used for, compared with your broad, but unsupported claim there.
Further, your Romeo and Juliet example does not have any elements of a natural right. You are not the originator of the work, and you did not have those rights at the creation of the work. You came into rights based on the operation of law as the author gradually shed those rights. It operated quite a bit differently in terms of mechanics in the Bard's day, but still fundamentally the same.
What operation of law? Nowhere in the Copyright Act does it say that a person can have the right to read a book, for example. Since it isn't mentioned, that right must have a more fundamental origin. That would make sense, since many works are not copyrighted or copyrightable, and it would be impractical to have to separately deal with the same rights as to those works.
Simply put, if someone has lawful access to a work, then they are in possession of the full panoply of non-exclusive rights with regard to that work. Copyright might temporarily put the kibosh on some of those rights, but that doesn't mean that the rights aren't there.
You seem to think that the Copyright Act doles out rights to the public. Well, it doesn't. The closest it gets is to chip away at the exclusive rights that it previously granted to authors. There's no section that says that you can read a book, or privately listen to music, or do anything at all with a public domain work. All it says is that the copyright holder can prevent you from doing certain things, in the context of the age-old principle in our law that all is permitted if not forbidden.
Also, copyright as we know it didn't exist at all in Shakespeare's day. The stationers' copyright was a means of censorship and for the printers to assert a monopoly even against authors. The Statute of Anne was a sea change in copyright.
You cannot claim a natural right to extract profit on the contemporaneous work of others
Yes I can, and I do. It's a well-known phenomenon. I can offer up countless examples, if you really need them, but I'm sure you can think of some scenarios. Something you might want to bear in mind is that there is no natural right to property (much less copyright) with the possible exception of that which you can personally defend from others acquiring access to or possession of.
There simply is no fundamental right to the work of others.
Be more specific. There is no natural right to force others to create a work, or to grant you access to a work which they have created and control access to. If the work is created, though, and they allow you access to it, then only some artificial regime such as copyright could possibly stop you from doing as you like.
Copyright law is a license.
No it is not, though it does contain some statutory royalty schemes here and there. Personally, I'm not terribly fond of them; I'd prefer for some users to be able to use works for free, and others to have to negotiate. I grant that this might not have been as reasonable in times past, but I think it is manageable now.
An unlicensed reproduction is what? It is a copy not permitted by copyright law and not permitted by a superseding license agreement. If copyright law were not a license, "unlicensed" simply could not have a substantive meaning.
Wrong again! An unlicensed reproduction is merely one which the copyright holder has not permitted. It is the same as unauthorized. While all licensed uses are noninfringing, the converse is not true. For example, if I make a copy of some work (say, a time shifted copy), then this may be a fair use, and thus noninfringing, but it is certainly unlicensed, and the copyright ho
Natural law is a perfectly valid form and basis of copyright
Oh, I disagree. It winds up being nonsensical. I'm not aware of anyplace that uses such a basis for their copyright law and actually lives up to it. As near as I can tell, there seems only to be the utilitarian basis that we have in the US, and which is the original basis from the Statute of Anne, and there is the ill-conceived hodgepodge of talk about natural rights which is nevertheless built upon a badly-implemented utilitarian system such as in France.
The US has copyright for the sole purpose of encouraging creation of works
Well, no, we have it for promoting the public interest, part of which is the creation and publication of works, but an equal part of which is also having works in the public domain.
As for Berne, it was a bad idea originally, it's a bad idea now, and the best thing that the US can do is to leave Berne and get our own house in order. There's a reason we stayed the hell out of it for so very long, and I just wish we had had the strength to have continued to stay out.
I think that if it happens in a church it is a private performance unless they air it on TV or try to use an event to gain church-members.
No, that it happens in a church is really irrelevant. Ditto if it was in a theater or in a private home. It's the people that make it public or private, not the venue. If anyone can come, or if there's more people there than just a family and its normal circle of friends, then it's public.
Actually, I hate to say it, but the entire thing falls under freedom of religion.
No, I don't think so. This is neither targeting nor aiding religious groups. It's neutral. If any group, whether religious, or social, or whatever, had an otherwise identical party at their regular meeting place, it would be treated in exactly the same manner. It might impair worship (though this is not a credible argument unless the congregation has a football on its altar, really) but it's so incidental that it would be treated like the impairments of religion that come with drug laws.
The law contains a special exemption for sports bars.
Well, actually you're thinking of 17 USC 110(5)(B)(ii), which is for businesses, specifically restaurants and bars. They can be dry and still qualify. Other kinds of businesses are specially dealt with at 110(5)(B)(i). And everyone else is covered by 110(5)(A) (the "homestyle" exception), which is what the church really should have relied upon, provided that they had the right kind of AV equipment and didn't charge admission.
The law as written clearly makes any place that supports the consumption of alcohol superior to ones that believe in temperance as a religious principle, and thus clearly is unconstitutional.
No, and that's just stupid. Feel free to challenge the law, but I predict that you'll find it to be religiously neutral. Congress is dealing here with the dilemma of the unlicensed performance of works in businesses, including, but not limited to, restaurants and bars, which are especially known for doing this. Churches aren't businesses (some might be cynical about this, but remember that a church would not claim to be for profit if it wanted to keep its tax exempt status, and so would not try to claim a copyright exception for businesses) and so don't really fall within the area of concern.
No, that's not what is meant. The relevant legal definition is this:
If the church is open to the public, or if there is a substantial number of persons outside of a normal circle of a family and its social acquaintances gathered, then it's a public performance, regardless of how the church is actually run.
I suppose you could have an extremely insular church, with a small, very tightly-knit congregation (basically a cult), and get away with it, but that's probably not common.
Both, actually.
The broadcaster is performing the work by transmitting it, and the viewer is performing the work by displaying it. It could be clearer, I admit.
Furthermore, the definition given of "perform" makes it clear that the act occurs at the origination (the actor, dancer, football player, broadcaster).
No, the viewer does this to, i.e. by causing the audiovisual work to appear on the screen because he has tuned into it.
Where's the definition for "display?
Note that last one. When you watch an audiovisual work, you generally perform it. When you show slides from it, you display it. Or to think of it another way, performances deal with works of art for which time is a component, e.g. music, movies, plays. Displays are static, e.g. hanging a picture up on a wall, showing a slide, putting a book on a shelf.
and how does prohibiting a group of people from watching together, when each can readily watch individually, "promote the Progress of Science and useful Arts," the basic requirement for any US copyright law to be Constitutional.
Actually, it's just science; the useful arts are what patents promote the progress of. Copyright promotes progress by encouraging the creation and publication of works which otherwise would not be created and/or published, and then placing those works into the public domain as soon as possible, and until then, as near as possible. The mechanism of encouragement is an economic monopoly having to do with the work, i.e. copyright. One way for some authors to make money from their work is to publicly perform it or to license others to do so. For example, a playwright might charge a fee for people to stage his play in a theater for a paying audience. However, it was felt that private performances (such as a group of theater fans getting together and putting on the play themselves, in a house, purely for their own enjoyment, without an audience) could not be a material source of revenue for the author. Since imposing copyright on such performances would yield no encouragement (in the form of money) and would be a restriction on the public, it would go against progress, and so, should not be done.
While that could happen, that's not how it happened in this case. The first ten amendments are generally thought to act in harmony with the main body of the Constitution, having really only been in the form of amendments because it was easier than resubmitting the Constitution to the states, with the addition of the civil liberty protections. No court would ever think that the First Amendment abolished copyright merely by virtue of having been passed shortly after.
Well, that's not the case, actually. First, this can be seen in the interplay between free speech and copyright. I think that we'd both agree that there is a natural right of free speech. This right must certainly include the right to repeat what others have already said. If the government were to attempt to prevent me from, say, performing Romeo and Juliet, no one would even challenge that I could assert my free speech rights against them, though I hadn't myself written a word of what I wanted to say. Copyright, however, is not the right of an author to speak or publish his work (that's the free speech right) but is instead the right to prevent others from doing so. How could two diametrically opposed rights both be natural rights? It's impossible to honestly make the claim.
Certainly in the US, no credence has ever been given to such arguments. In Wheaton v. Peters, the Supreme Court stated that while some states may -- or may not -- have granted copyrights to unpublished works at common law, as they found wise, Congress had the only word when it came to published works. And Congress had not found there to be any preexisting natural copyright to protect, but had instead granted federal copyrights that had simply not existed previously:
The Supreme Court has never backed away from this position either, as seen in Fox Film Corp. v. Doyal (internal citations omitted):
Without a license, there is no access to the content.
Of course there is. They're broadcasting the work far and wide. They're giving the access away. They're not even undertaking the first step to bar anyone from tuning into it. There's no license as far as the ordinary viewer need concern himself. Copyright law still applies, so if you're acting in some infringing fashion, then you would want a license. If you're not, then you don't need a license to begin with. There is no reading license, or listening license, or watching license. If access were controlled, then there could be an argument made, but in this case, where it is freely broadcast to hundreds of millions of people in the clear, with the intent that they should tune into it, the access argument is hilariously unfounded.
The end viewer comes into possession of a licensed copy
No, a copy is a tangible medium in which a work is fixed. A broadcast doesn't qualify. And, MAI v. Peak notwithstanding, there is actually very good reason to believe that an ordinary TV doesn't qualify either, as it is too transitory. (See the Congressional notes from 17 USC 102, and don't bother raising the point of CRT memory or mercury delay lines, as I know just how annoying and silly the MAI decision is)
Maybe in his office, but he better pay up if he puts the radio in the waiting room.
Well, depending on who else was in his office, that might be private anyway. No, this exception is meant for this sort of thing. A canonical example is a restaurant with an ordinary stereo on a shelf, tuned to a radio station.
To me, ad-hoc speaks of randomness, of improvisation, of Brownian motion and Gaussian distributions, of unevenness and arbitrariness through lack of design.
;)
I don't see the randomness aspect; it's just that these laws tend to develop in an organic fashion, following both the preexisting laws, to preserve continuity, and adding or altering them to deal with the changes that have since come about. And the changes are often driven by those who would gain from them, rather than those who seek a stable, consistent, useful system.
Now, let's examine patent law. This is applied to inventions, non-obvious innovations (and certain classes of obvious innovation, as there is case law upholding patents that are mind-blowingly obvious), business methods, software algorithms (but not mathematical algorithms, even though these are functionally the same) and decoded genes, but not all classes are recognized in all countries, classes that are recognized aren't necessarily recognized the same way, and even when they are, patent authorities have a degree of flexibility in what they recognize.
Modern US patent law deals with useful, novel, nonobvious inventions. Most of the things you list are just flavors of invention, such as a business method. Things have been different in the past, though; often, you could get a patent by introducing a technology that was well known elsewhere. That's not the worst idea, but it's not one we've pursued, and probably isn't that important given how small the world has become.
What about trademarks? There is a world of difference in meaning, intent and quality between a trademark used to represent a common source (eg: the stamps used to mark goods for trade as being authentic), a trademark used to represent a specific product (Unix is a trademarked name), a trademark used to describe something (it's amazing how many technical books and software packages have trademarks for something descriptive) and a trademark in the form of some expression (you can't play an electric guitar with a bow, without violating trademark law).
No, trademarks always indicate that something so marked has come from a common source with other so-marked goods or services. Again, you're just looking at different flavors of them, since there are so many different sorts of identifiers. (And in the case of the UNIX mark, it's probably gone generic by now. Common use is what is controlling, and since 99.44% of people probably think that any unixy software, e.g. Linux, BSD, is a unix, then that mark just isn't viable anymore)
Ok, so if they are all so different, could they be unified?
Why?
I suppose we could try to unify all branches of the law so as to reduce everything to various facets and aspects of a single underlying universal legal principle. But there probably isn't one, and it sounds like an astounding waste of time that wouldn't actually accomplish anything. Outside of someone having OCD about it, I just don't see any point whatsoever.
Current unification methods have nothing to do with universal principles or fundamental components, so I seriously doubt the competence of any politician to produce such a specification, but I am willing to accept you could do it.
I assume that by 'you' you mean a generic 'you,' and not me, specifically.
Sure it does. Copyright law doesn't "give" any rights to the copyright holder at all. It takes them away.
No, copyright law does grant exclusionary rights to the author. While copyright doesn't grant the author the right to create or publish a work (which is covered under freedom of speech and the press to the extent that they apply), it does grant to him an artificial right to prevent others from doing certain things with that work.
Those exclusive rights are themselves subject to some limits, but that's really a matter of defining the extent of the rights.
The broadcast is not licensed for public performance on screen sizes larger than 55".
With regard to the viewer, the broadcast is not licensed at all. There may be licensing arrangements involving the NFL, the stadium owner, various television networks and providers, etc., and perhaps even a few entities that do engage in public performances of the work at the 'showing it on a tv screen' level, but there's no relevant license touching the average viewer.
You don't possess any rights to the broadcast
Sure I do. My rights guaranteed by the First Amendment permit me to make copies of the broadcast, distribute them, engage in public performances, etc. in precisely the same way that I can do so for works I create, or works which are in the public domain. The only difference is that in the case of this broadcast, the copyright holder temporarily has a limited right to prevent me from exercising my more fundamental rights. His right does cover public performances of the work I might engage in, but it doesn't cover private performances.
The counterpart to this is private performance, which is protected by copyright for the users.
Well, no, it's not. It's just ignored, since it is outside the ambit of copyright altogether. Copyright regulates private performances exactly as much as it regulates interstate highway speed limits: not at all.
This is not a private performance
I agree. I never said it was a private performance, I merely corrected the earlier post which mistakenly claimed that private performances fell under copyright. They don't.
Yes, I know. I think it's silly in this particular case, but the NFL does have the superior legal position here. I wasn't saying otherwise, I was just pointing out the mistake in the earlier post.
IP law is, frankly, a mess. Either unify all the concepts into one single notion, OR sub-divide the existing categories into wholly uniform concepts.
We did. There's copyright law, patent law, trademark law, and trade secret law. Plus a couple of other minor areas. None of them have anything to do with one another; there is no single underlying principle. And they were never lumped together as 'IP' until quite recently by folks with suspicious motives. I practice in some of these fields and I avoid the 'IP' term as much as I can, since it is terribly inaccurate and misleading.
I would argue for unification, partly because you are dealing with underlying principles but also because if the unification is valid and correct, it will remain valid and correct for any future technologies within the bounds for which it is defined.
I disagree. First, that's been responsible for a lot of the current situation. Second, there isn't a shared principle. Third, they're all pretty ad-hoc in a lot of respects, and deal with wildly divergent and non-overlapping subject matter. It's a lot easier to have sensible laws in these fields if they can just ignore the others, which wouldn't be substantially affected anyway.