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Internet Archive Loses Copyright Fight
Posted by
michael
on Tue Nov 30, 2004 03:49 PM
from the rejected dept.
from the rejected dept.
tiltowait writes "As reported on LISNews.com, the Internet Archive has lost a copyright lawsuit which challenged the Congressional lengthening of copyright terms and conditions. The ruling has implications for abandonware and other copyright-eligible materials that have no active owner. Brewster Kahle plans to appeal the decision." The decision is available. As we noted in an earlier story, the Eldred case challenged the length of copyright expansion, this one challenged the breadth, and so far, this one is going about as well as the Eldred case did. Stanford has an overview of the case.
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I don't know what to say. (Score:4, Insightful)
Yay! (Score:3, Funny)
Abandonware is still copyright-eligible (Score:3, Insightful)
Re:Abandonware is still copyright-eligible (Score:5, Informative)
Software is subject to copyright law.
The law states that copying, distributing, etc. that material, even if it is abandoned and unsupported, is illegal. But there are many individuals who want to use, modify, develop, etc. those materials who are presently prevented from doing so by the law.
If abandoned material was no longer encumbered by copyright, people with an interest could do new and creative things with those materials. Instead, though, the law acts to stifle and constrain new advances and developments, rather than to encourage them.
It preserves the rights of ignorance and suppression, rather than allowing and encouraging creativity, invention, and development.
Parent
Re:Abandonware is still copyright-eligible (Score:4, Insightful)
Very simply, copyright deals with whether the material is owned, not with whether it is distributed or not.
The car in my garage that I haven't driven in 10 years is still mine, and you can't take it just because you need a car and I'm not using it.
I have the legal right not drive my car, and I have the legal right not to distribute my software. My availing myself of these rights does not in any way confer rights to my things upon you.
Thus, you cannot distribute my copyright protected material over the internet, even though I am not doing so myself.
KFG
Parent
Not Quite Right (Score:4, Interesting)
Well, you're right to some extent. Copying "abandonware" that is "owned" by a company that still exists is a little tough. Personally I think if you can't buy a copy (i.e. the company doesn't have a copy, won't sell a copy, whatever), you should be able to make a copy, but that's my opinion and only a small part of the discussion.
Much more significantly, let's extend your metaphor. Let's say you die, as companies are prone to do. Let's say you have no heirs, no will, and in every other conceivable way no one with any legal claim to your car.
What happens then?
Honestly it depends on where you live, but in most places your car would probably get auctioned off at some public auction where the proceeds get dumped back into the community (law enforcement funding or whatever).
The equivalent "resources return to the community" scenario for software would be that the copyright is considered "expired" before the "official" expiration date.
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Re:Abandonware is still copyright-eligible (Score:5, Informative)
What's that got to do with copyright?
The argument goes something like this:
Consumer: "I'd like ProgramX, please."
Producer: "I'm sorry, we stopped making ProgramX a few years ago."
Consumer: "Oh, well where can I purchase a copy then?"
Producer: "I'm sorry, you cannot purchase a copy of ProgramX."
Consumer: "What if I copy ProgramX from a friend who has it then?"
Producer: "Copying ProgramX is illegal, because it denies us a sale."
Consumer: "But where can I buy ProgramX?"
Producer: "I'm sorry, you cannot purchase a copy of ProgramX."
Or something like that.
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Re:Abandonware is still copyright-eligible (Score:3, Informative)
Re:Abandonware is still copyright-eligible (Score:4, Interesting)
A few years ago, I installed MAME and a copy of the ROMs from a site and played it a bit for nostalgia's sake. (It's plain awful by non-1983 standards! :) Like a fool, I didn't keep a copy. The last time I looked (not very hard) I didn't find it because sites have gotten cautious about copyrights on old ROMs.
So, one of the few people that might care about those ROMs can't get a copy even though my initials are fourth down on the high-score list. All because of submarine IP that never really goes away unless the owner is absolutely completely gone or someone explicitly puts it into the public domain. (As I recall, in 1983 the laws were in flux as to copyright applying to ROMs at all.)
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Software never wears out (Score:4, Insightful)
One unique property that software, fiction, nonfiction, and other creative works have is that they *NEVER WEAR OUT*. Thus, old creations are direct economic competetiors to recent creations. Thus, the cheap availability of old creations in the public domain would affect and depress the market of recent creations. The copyright feudalists have done their best to keep this from happening by keeping old creations far away from the public.
Thus, copying old artistic works/abandonware could be detrimental to current creation. For instance, if copyright law was 42 years, most black&white film archives would be out of copyright --- I'd expect a lot of reruns of those instead of recent creations on TV.
Unfortunately, keeping old creations far from the public and rotting away is also destroying our cultural largess to our descendents. Under the current law, our cultural heritage will be lost. How many 80's arcade games are already lost forever? How many would have been lost forever by now without MAME?
To me, the preservation of our culture for the future is more important than an argument that the professional creation of modern cultural works would suffer a minor economic decline. Personally, I think the availability of more culture in the public domain would lead to a bit less professional creativity, but VASTLY more total creativity.
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Re:Abandonware is still copyright-eligible (Score:3, Informative)
The-Underdogs.org approach is this: post it unless you can buy it, or there's a legal letter on the subject - and that's gotten them pretty far. They've thrown some heavy hitters onto their
Abandonware, ahh.. (Score:5, Insightful)
Besides, the ability to play the games that I once oggled over in PC Gamber but couldn't afford is really quite something.
Re:Abandonware, ahh.. (Score:5, Insightful)
Copyright isn't just about giving control to the copyright holder. It's a deal struck between authors and society. Authors agree to produce work for society, society agrees to give the author a fair chance at compensation for their work.
One could easily make the argument that when an author refuses to distribute their product, they aren't living up to their side of the deal.
Of course that's not how the law reads right now, but a simple majority can change that.
Parent
What about this scenario? (Score:5, Insightful)
My company collapses thus the software is no longer sold or supported.
1 year later I create a new company and I want to sell my software again.
Parent
Re:What about this scenario? (Score:5, Insightful)
If your company owned the copyright, and that company ceases to exist, then now that copyright is in limbo - which is exactly what this lawsuit is trying to address.
If you owned the copyright and not the company, then nothing has happened to the copyright and you can sell your wares as before under any new arrangement.
Even if company goes bankrupt, its IP (copyright) can be sold off and the new buyer would own the copyright.
So your scenario is already covered. It makes no sense to protect abandoned copyrights. It makes about as much sense as protecting abandoned cars on the highway.
Parent
Re:What about this scenario? (Score:4, Informative)
Here, companies are perfectly able to own copyrights, both as authors under the work for hire doctrine currently codified in 17 USC 201 and 101, and through assignments from other authors as provided for in 17 USC 204.
In fact, I don't recall that it's ever been impossible for companies to own copyrights. The work for hire doctrine dates back over a century, and assignments to another who would then become the copyright proprietor were possible.
Licensure is also an option, as you note. But it's hardly the only one!
And of course, corporate ownership of copyrights is a totally pedestrian idea throughout the world. I can't think of any place that doesn't allow it altogether. Perhaps you know of one?
It would probably be a good idea for you to do some learnin' on this subject before you post about it again.
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Re:What about this scenario? (Score:4, Informative)
From FindLaw.com...
The CTEA extended the term of protection by 20 years for works copyrighted after January 1, 1923. Works copyrighted by individuals since 1978 got "life plus 70" rather than the existing "life plus 50". Works made by or for corporations (referred to as "works made for hire") got 95 years. Works copyrighted before 1978 were shielded for 95 years, regardless of how they were produced.
Any other thought that need to be straightened out?
Parent
Re:One person's "abandonware" is not another's... (Score:5, Interesting)
I was involved in producing one of the first classic arcade collection for PC.
It was a NIGHTMARE!!!
Since many of the titles we were interested were produced by defunct companies, it was impossible to track down proper copyright owners to license the game. We were able to finally track down copyright owners for the titles we really wanted, but some of the titles had to be abandoned because we could not verify who had the proper copyright.
Even with identified copyright holders we had problems with other people challenging their ownership. Very, very confusing.
Again, if a copyright is valuable enough, then the owner should protect it and license it accordingly. But there are numerous copyrights that are hopelessly lost or disputed (where no one can prove clear ownership) that should become public domain by default.
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Re:Abandonware, ahh.. (Score:4, Insightful)
One could easily make the argument that when an author refuses to distribute their product, they aren't living up to their side of the deal.
Congress and the courts have explicitly recognized a right to not publish, or publish on their own terms. Copyright is a grant of a limited monopoly, and simply because I'm not publishing a work right now doesn't mean that I'll never do it. The worst case is that you (the public) get to do what you will with it when the copyright expires; the deal is that you get to see it when the copyright expires, not when I don't quote you a price.
Note that this is if the copyright holder can be identified. If I write a crap program and never distribute it because it was a throwaway hack, I'm perfectly within my rights to do so. That doesn't give someone the right to beg, borrow or steal a copy and distribute it, just because I'm not doing it.
For example, I might deem that the creation is so horrible (since I didn't put hard work into it) that if I were to release it, it would harm my reputation as a programmer (or writer, filmmaker, etc). Thus I have the right to keep a lid on it as long as I want. Who knows ... in the future I may decide that it's a cute work representing inexperienced naivete that the world should see and laugh at. Just not yet.
-jdm
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Darth Vader is on-topic (Score:5, Insightful)
That's a very interesting theory. The REALITY is that our dear Congress keeps saying "I am altering the deal. Pray I don't alter it any further" every few years.
Ever since the Bono Act, we are living in an age of perpetual copyright. I do not expect any current copyright to expire in my lifetime. It's far less likely to happen than Social Security being solvent in 2040.Parent
Re:Abandonware, ahh.. (Score:5, Insightful)
Sorry, wrong. That may be the way the law is currently interpreted, but that is clearly not the way the law should be interpreted.
What follows is U.S. specific: that's appropriate, since the decision is also.
Our constitution gives Congress the right to extend monopolies to artists, authors and inventors, for limited periods, to serve the public interest. The ultimate aim is to enhance the public domain. I'd say that allowing a copyright owner the ability to exercise dog-in-the-manger style control, by intent or by apathy, is clearly unconstitutional. If the courts disagree, they're following in the grand old tradition of Dred Scott [wustl.edu]. The courts have been wrong before.
The copyright is not dependent upon the owners ability/desire to distribute it.
That is probably true, but if so, it is an accident of law, not The Way God Commanded It.
Copyright is not a natural right like your right to not be murdered. Copyright is a deal we make with authors, because we think we're better off for it. If we aren't better off, if the authors aren't holding up their end of the deal, we have right to change things around. Copyright should be called copyprivilage.
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Re: The law, and who should fix it (Score:3, Insightful)
I'd say that allowing a copyright owner the ability to exercise dog-in-the-manger style control, by intent or by apathy, is clearly unconstitutional.
With above distinction, your view reads to me as: "because the law doesn't have the intended effect, it should be declared unconstitutional". Newsflash: this happens all the time, and laws aren't un
Re:Abandonware, ahh.. (Score:3, Insightful)
The key there is the should. I'm pretty sure that the law as it is worded makes abandonware as illegal as copying current software. However, it is argueable that the original intent of copyright law is to encourage the creation of new intellectual works for the enrichment os society. Under that interpretation, it becomes p
Re:Disney's business plan. (Score:3, Insightful)
1) Find a classic story with expired copyrights.
2) Whitewash it until it can't offend anyone.
3) Use its mass media engine to make it ubiquitous, similar to how Microsoft sole Windows 98.
4) Copyright their neutered version of the public domain work, and pay the government to keep it copyrighted in perpetuity.
It's reminiscent of how many humans take all their nourishment from their environment, yet take every measure, from coffins to embalming, to prevent giving back to i
Re:Disney's business plan. (Score:5, Insightful)
You see, once upon a time, the idea of "intellectual property" and "copyright", would've been laughed at. I mean, when I tell you a story, I still have the story, right? Languages and numbers only become more useful with each new person who learns them. However, all knowledge is power, and many people preferred to keep that power to themselves. A fine example is the Masons, who prospered for for many years due to secret stoneworking techniques and still have a reputation for secrecy to this day.
As a way to encourage the sharing of ideas and works of art, the idea of copyright was conceived.
The purpose of copyright is to encourage artists to share their works with the public by allowing them exclusive publishing rights for a limited time, after which those works would enter the public domain.
Would Disney have been able to create Snow White, Sleeping Beauty, The Little Mermaid, etc, if the inspirations for those works had not been in the public domain? Of course not, and Disney's success is one of the best arguments for the necessity of allowing works of art to pass into the public domain. Yet Mickey Mouse (and literally thousands of other works of art, published since 1928, the first appearance of Steamboat Willy) has not passed into the public domain, as would be proper. Instead, every time that mouse comes close to becoming public property, Disney lobbyists donate money to purchase another copyright extension, and more and more works that should belong to society as a whole are dragged along with Steamboat Willy.)
The public has been denied the compensation it deserves for allowing Disney the copyright in the first place, and it seems that will continue to be the case, until a sufficient number of people wake up to what we are losing in exchange for Disney's success.
Parent
Re:Abandonware, ahh.. (Score:5, Interesting)
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Google's cache next? (Score:5, Interesting)
Re:Google's cache next? (Score:3, Insightful)
And I get modded down by some idiot. I mean, if I'm wrong about this, somebody tell me, throw me a frickin' bone here, instead of dropping a -1, Overrated on me.
Damn that Mickey Mouse (Score:5, Insightful)
The Peter Pan Coyright (Score:5, Informative)
Bambi was released in 1942. The Bambi copyright was not secured until 1926. Disney fought and won on the issue of a "timely renewal" of the coyright in 1954. Amelia Translation Project [amelia.ne.jp]
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We have to face it... (Score:5, Insightful)
I think we need to face it: the copyright extensions passed by Congress were legal. We had one of the best minds of any generation - Lessig - argue the Eldred case in front of the Surpreme Court. They remained unmoved. Why? Because the Constitution is pretty clear on the issue... Congress gets to regulate these issues as they see fit.
The courts are not the right place to fight this issue. The courts are the wrong place to fight this issue.
Congress is where this is at. They pass the laws, they pass the penalties, they make it all happen. The courts cannot and more importantly should not be used as a legislative tool.
Copyright has swung too far from the commons that defined much of what is good about this country. Congress needs to move it back.
The Courts generally can offer no relief where there is none deserved. What is happening now with the extension, DMCA, etc is *exactly* what was intended by Congress.
right, now EVERYONE do your part (Score:5, Interesting)
Well at least everyone who is legal to vote in the US. Starting a little over a year from now, your local political parties will be holding meetings to determine their direction for the next election. Find out when and where they are, then show up. For the two major parties this is public knowledge posted well in advance. (third parties hold them too, but finding out when and where is more difficult)
Once you are there, start talking, but make it intelligent. Find out the format in advance each party is slightly different. Prepare some resolutions in advance.
Normally the format is someone starts by reading a prepared sentence ("Be it resolved that abortion shall be illegal"), and then the floor is open for debate. Immediately someone will jump in and say no, they disagree ("Abortion is a women's choice"). After a few minutes the chair stops discussion and calls for a vote: yes, no, abstain. (Note I specifically picked an example you are likely to hear when you go! Your resolution will not be near as controversial, so it won't get near as much debate)
At some point they then pick people to represent their local area in the state convention. Get picked! (this isn't hard, in many areas anyone who shows up gets a position if they want it, and then they pick alternates from those who couldn't make it that night but have gone to state in the past) At the state convention much the same happens, except the debates are larger.
Remember, present your resolutions as non-controversial, good ideas. Most people will not be informed, so they will abstain. Then when it gets to state the only people who care are those from /. who took my advice, and are on your side.
Now get your party elected.
The above is the grassroots processes. It is how everything is done politically in the US. The power is by following the above, forget the party boss, they are nothing compared to the millions of little guys working together to get something done.
Note that it does not matter much which party you pick. Neither major party has a monopoly on doing the right thing as far as copyrights (both have done the wrong thing countless times). Pick one you generally agree with, and fix the parts you don't. This works even better when some pick the republicans, and others the democrats. Then when congress meets in 2 years, there is strong grassroots bi-partisan support for your issue, so congress passes it so they can be reelected for doing something non-controversial.
Of course the above is ideal. In the real world reform can take years, and many will oppose you. Keep at it. Good luck.
Parent
Re:right, now EVERYONE do your part (Score:3, Informative)
Re:We have to face it... (Score:5, Insightful)
Anyway your argument is not at all persuasive. The Constitution clearly limits Congressional power of copyright and patent, and it even employes the word "limited" and gives a perfectly valid reason:
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries
There ya go. Copyrights must be "limited" and they must "promote the progress of science and arts" whereas the Sonny Bono act satisfies neither.
Parent
No, we don't. (Score:4, Insightful)
From the site:
The Judicial Branch
The Congress is considering a bill that will make criticism of the President on the Internet's World Wide Web illegal. If the bill is approved by Congress and approved by the President, the Supreme Court must be ready to hear arguments in favor and against the bill. The Supreme Court must be ready to ask the Congress questions about the bill in order to learn facts that will lead to a decision in a lawsuit brought by the Press against the bill. The Supreme Court must develop five to seven questions it can ask lawyers on both sides. The Supreme Court will also have to vote on the constitutionality of the bill. Those in favor (there must be a minority of students taking this position even if they disagree with it) and those opposed to the bill must write a "majority" and "minority" opinion in the case.
This is a lesson plan aimed at students, so the five to seven questions thing can be ommitted, but the idea is clear- the supreme court IS HOW TO REGULATE CONGRESS. It's how the government was designed, and the most effective way to combat purchased politicians. I'd hope it's more difficult to lobby a judge (who would be appointed- no need for campaign money), than the local congressbeing (who IS elected, and has massive financial support for campaigning).
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Constitutional Amendment? (Score:3, Interesting)
Perhaps slashdot (readers)could hatch a plot to make this happen. (Perhaps I'm dreaming.)
Some states provide for direct democracy by ballot initiative; other states will require more work. (Sounds like a hackers challenge to me.)
Check out Wired (Score:4, Informative)
But if it's abandonware.... (Score:3, Interesting)
IANAL... (Score:5, Interesting)
1) Eldred vs. Ashcroft said this, so we can't overturn that, try to go to the Supreme Court.
2) People live longer now so copyrights should last longer (for kids and such)
3) Congress carefully considers the meaning of "promotes the progress of arts and science" every time they extend this
4) Technology increases the amount of time a given work is "valuable", (tell that to the RIAA, or anyone using an old version of Windows) and thus extending the copyright gives authors even more of an incentive to create.
My question though is that since all charges are "dismissed with prejudice" is there any grounds for an appeal?
This just kills me. (Score:3, Insightful)
Man, how anyone so stupid can get through lawschool and make it to the bench is just mind boggling. I mean, I can see some of their points, but come on...
"1) Eldred vs. Ashcroft said this, so we can't overturn that, try to go to the Supreme Court."
Well, okay. Precedent. I hate the concept but it's how things are done.
"2) People live longer now so copyrights should last longer (for kids and such)"
Uh... what? Living longer has always made copyrights last longer. As for the kids... if this stuff i
Congress... (Score:5, Interesting)
Has any effort been made to request of congress the creation of a statutory "safe harbor" with respect to the use of material eligible for copyright protection but otherwise abandoned? Would it hurt Disney if the law included protection from liability for those who make a good faith effort to get permission but receive no response?
For that matter, if we really want to treat IP with the same rules as physical property, then should notions about adverse possession, abandonment, and eminent domain apply?
Intellectual property is different (Score:5, Insightful)
Now I'm a Libertarian [lp.org] who works in an idea business, so I understand the utility of intellectual property, but it seems reasonable that the law should require an actual rights-holder to affirm their rights and/or create a process by which someone who wanted to republish abandoned intellectual property could give notice to the purported rights-holder. If there was not a negative response in say, 60 days, the person would get the rights to publish the work.
Just a thought.
Yours truly,
Mr. X
...killer Benihana shrimp [sarwark.org]...
About That Time Again... (Score:5, Interesting)
It pretty well sums up what I believe about this sort of thing, and there have been several thousand people who pretty much agree with me.
And I'll take the opportunity once more to thank Teresa for putting it together and hosting it.
p
Yeah, yeah, this is Slashdot (Score:5, Interesting)
In a nutshell, current copyright policy looks like it was created to deal with an unmanageable system of registration, notification, and people who DID want to maintain their rights losing them. I find it interesting that we complain the US is isolationist and then reject this attempt to conform to world policy.
Finally, with regards to abandonware, the premise is that the original company is making no money off of it and "doesn't care" if it's distributed. If this is truly the case, then distribute it anyway, even if it is copyrighted. If they don't care, then no problem. If they do care, then take it down. The stuff that truly is abandoned will still be distributed, but the items that the copyright holders still have an interest in will not be.
The legal nuances only come into play if someone takes you to court, and if to reach that point generally means that not only do they significantly value the work, but you've most likely refused to resolve the situation amicably. Companies, even large ones, would much rather send a simple letter than sue someone.
Re:I hope they'll beat this in court somehow. (Score:3, Funny)
Ok, here's an idea (Score:3, Insightful)
A copyright Goodwill, or Salvation Army.
Let's say we call it the "Public Domain Foundation" or somesuch. When people are done with their intellectual property, and have squeezed every last dollar from "Doom 2, Electric Boogaloo", they can donate it to the PDF and get some tax writeoff. Just like people donate their old sneakers to Goodwill. Then the PDF declares the IP to be public domain.
Just like with the used goods charities, not everyon
Re:Relocate (Score:4, Interesting)
Ryan Lackey did a presentation at Defcon 11 which can be viewed here [64.233.161.104].
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Re:Relocate (Score:3, Funny)
I also had no idea that Las Vegas was in California.
Here's the deal! (Score:5, Insightful)
*Perhaps* this is because *that's the deal* that *your band* *agreed to* when *you* *signed* the *contract*. It's *the price* for a *chance* at *major label* fame and *fortune*!
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Re:Here's the deal! (Score:4, Insightful)
Or perhaps it's the tithe you have to pay to a bunch of goons who have monopolized US music distribution?
Somebody would be an idiot for signing a contract like that IN A FREE MARKET, but we have no such thing. Hell, an independent band even has to pay an RIAA tax on the the blank media they use to record.
The problem isn't this guy, it's that a criminal [musiccdsettlement.com] organization has managed to buy off politicians to the point where they even make money off blank tapes they neither manufactured nor distributed. You have to pay them for NOTHING, how fucked up is that?
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