Forgot your password?
typodupeerror
The Courts Government Books Media United States News Your Rights Online

Kahle vs Ashcroft: Copyright Battle Continues 390

Posted by michael
from the ding-ding dept.
Robotech_Master writes "People may remember librarian Brewster Kahle as the man behind Archive.org's Wayback Machine and the Internet Bookmobile. He was one of the big supporters of Eldred in the Eldred vs Ashcroft case. Well, he's at it again. A new lawsuit, Kahle vs Ashcroft, has been filed as of March 22nd. Lawrence Lessig comments on this case in his blog." Question number 3 of the FAQ explains that while the Eldred case challenged the length of copyright expansion, this case challenges the breadth.
This discussion has been archived. No new comments can be posted.

Kahle vs Ashcroft: Copyright Battle Continues

Comments Filter:
  • by Anonymous Coward on Tuesday March 23, 2004 @03:58PM (#8648289)
    Not that I agree with the result, but didn't the US Supreme Court rule that effectively "open-ended" copyright terms were OK?
    • Not really. This is with reference to works that are no longer available... basically, he's saying that retaining copyright restrictions on abandonware is unconstitutional, and I agree.
      • by lukewarmfusion (726141) on Tuesday March 23, 2004 @04:09PM (#8648400) Homepage Journal
        Who's to classify a work as "abandonware?" If the author doesn't want the work released, he should have the right to keep it that way. The burden should rest on the publisher, even if that means tracking down the current copyright holder and begging for permission.

        Just because you can't find it easily doesn't mean that it should be free for the taking.
        • by AnyNoMouse (715074) on Tuesday March 23, 2004 @04:21PM (#8648524)
          Who's to classify a work as "abandonware?" If the author doesn't want the work released, he should have the right to keep it that way. The burden should rest on the publisher, even if that means tracking down the current copyright holder and begging for permission. Just because you can't find it easily doesn't mean that it should be free for the taking.
          The constitution originally provided that all works had to apply for copyright to be copyrighted and that these copyrights had to apply for a renewal at some point to maintain copyright. A recent law changed these requirements.

          "Abandonware" would be a copyrighted work that was not renewed.

          • Just to clarify: The Constitution provides Congress the authority to legislate copyright into existence:

            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 form of copyright restrictions that you mention were authorized by Congress through various laws down through the last 200 or so years of history ... they are not present in the Constitution itself.

        • by Anonymous Coward on Tuesday March 23, 2004 @04:22PM (#8648536)
          • If the author doesn't want the work released, he should have the right to keep it that way.
          THE HELL HE DOES.

          That line of thinking has caused thousands of hours of vintage TV programming to be lost forever.

          If you can't legally buy it, you should be able to freely trade it around.

          Besides, since everything is supposed to end up in the public domain eventually, what better way to preserve something?

          You forget that copyright is not meant to solely benefit the copyright holder, and noone else.

          Amiga Unix is now being spread around the net thanks to someone who had a tape of it and had the forethought to back it up before it degrades. The source code was already lost long ago, so if this were lost, there would be no existence of Amiga Unix at all. And it's said that AMIX is one of the better implementations of it's time, I believe. With your line of reasoning, AMIX would be lost.

          Abandonware could be set at, say, 15 or 20 years. More than plenty to let something sit around. And if it can be legally acquired (not used, brand new), then copyright protection is fine. But something like this literally allows someone to destroy a part of history, intentionally or otherwise. And that should be prevented above all, because what good is it if the future generations can't benefit from it?
          • by Anonymous Coward

            If you can't legally buy it, you should be able to freely trade it around.

            That's right! Where is my free weed?

          • by AJWM (19027) on Tuesday March 23, 2004 @05:23PM (#8649152) Homepage
            While I wouldn't have chosen your examples, I agree with your point.

            An example closer to home: 20 years ago I wrote the original CoSy software used by, among others, the BIX conferencing system. The original copyright was held by University of Guelph, they later sold (some?) rights to a company called SoftWords. When BIX eventually closed up shop, a number of Bixen wanted to keep up the community on their own CoSy system. SoftWords hadn't been selling the software in some years, but an appeal to both U of G and SoftWords got them to agree to release CoSy under the GPL.

            Problem was, neither of them had a readily available copy of the source nor were they inclined to spend much effort digging for it.

            Fortunately, I still had a copy (ancient but readable), and the project lives on on Sourceforge. (The "son of BIX" lives on as Noise Level Zero, nlzero.com).

            But what if Softwords had gone out of business, the assets dissipated and nobody even knew who had the rights to the software anymore? (Hmm, sounds a bit like Unix in some ways). That's certainly abandonware, but under the current law it wouldn't be public domain for another 75 or so years.
        • by SydShamino (547793) on Tuesday March 23, 2004 @04:24PM (#8648554)
          So does the author have the right to say "I don't want my work released, ever, so any old copies out there can degrade until they are unuseable but no one can make any new copies."????

          Answer honestly. Do you believe that this is true, that an original content creator has perpetual rights to control the use of his work?

          If so, congratulations, you believe in the European model of copyright, where it is an inherent right of a person.

          In the US, however, copyright is not an inherent right. Instead, public domain is the inherent right, and the constitution grants a limited monopoly on creative works ONLY so that the public domain is improved. Thus, in the US, once an author/creator/etc. chooses to write down and release a work, he or she has given up perpetual control of that work. The constitution demands that, after a limited monopoly, the public domain shall inherit the work.

          Frankly, I agree with the constitution. Some things belong to humanity, not to the greed or whims of those in control. The sum body of human creativity is one of them.
          • The answer to your question is:

            The author has every right to prevent his work from being released during the copyright period. However, you do have the right to make a copy for backup, shifting, etc.

            But the author should not be prevented from maintaining a right to his own work during his lifetime. I'm not sure that I agree with the "so many years after his lifetime" part of our current law.

            If I create a work for personal benefit, and then others benefit but I do not - then copyright has failed. I simply
          • "I don't want my work released, ever, so any old copies out there can degrade until they are unuseable but no one can make any new copies."????

            Yes, the author is allowed to put their works away in a vault with a bomb on a timer that will go off at some point in the future.

            While there are criminal and civil statutes surrounding copyright now, copyright has been more of a social contract than anything else. This social contract says basically "Sure, you can control the creative expression of the idea for
          • SydShamino has his finger on the pulse. He's pretty accurate. In fact, SydShamino, would it be OK to copy a sentence or two from your post for the Respect The Public Domain Web site? I'd probably put some of the text from your fourth paragraph onto the following page:

            http://www.respectthepublicdomain.org/what.html [respectthe...domain.org]

            I think your wording is more succinct and accurate than mine.

        • The copyright holder often stops distributing the work before the copyright term is up. I don't have statistics, but it seems logical to assume that in the vast majority of these cases that happens because the work stops being profitable; therefore, in those cases, the fact that the work is being distributed by someone else is not hurting the copyright holder's profit at that point. The copyright term can be cut short here without curtailing (and indeed, enhancing) the principle behind finite copyright ter

          • I don't think stopping production means that it isn't profitable. I think Disney does this with the intent of maximizing its profit.

            Often Disney stops production of a video title and lets the market go without new copies for seven or so years then re-releases it. I think under the idea of abandonware, it has been abandoned for seven years.
            • I realize that, which is why there would subsequently need to be a legal definition of abandonware (well, it would actually be a definition of !abandonware) as many people have pointed out. However, this type of legal decision would put the onus on Disney in this case to renew their copyright by making sure their stuff fits the !abandonware definition, whatever that requires on their part. That way, if a company really does abandon the product, it will automatically lapse into abandonware status and won't b

        • The issue they are questioning is whether the work should be protected if the author doesn't care. The suit is stating that for a work to be protected, the author ought to be required to express a desire for it to be protected. Also, the author could then provide some means for contact so that permission can be requested.

          I agree that difficulty of access does not make it permissible to use without authorization, but see little value in restricting access to works where the author doesn't care. Requiring th
        • by Anonymous Coward
          I'm sorry, but author or no, you don't have the right to destroy information. If the author dosen't want something released, then they shouldn't have released it.

          With copyright terms "protecting" works for longer than their recorded medium can hold them, we are faced with a very real danger of our history, culture and knowledge disappearing.

          If you want to live in the dark ages, find a cave somewhere. Me, I kinda like some things about the 21st century.
        • I agree with most of your points. I'm not trying to support a perpetual copyright; quite the opposite. I would argue is that copyright is too long - not that it should be removed from people who want it kept.

          If an author wants to protect his work, he should. But only in the interest of him protecting his work and ability to profit from it reasonably. He should be able to extend it to a period if he chooses. But that would require registration. If an author wishes to protect it for a period (say, 20 years)
          • by Robotech_Master (14247) * on Tuesday March 23, 2004 @06:02PM (#8649623) Homepage Journal
            You make it sound so banal.

            The thing is, tracking down the authors (or, rather, their rights-holders) can be an impossible task for just one work. And what if all of the survivors of the author don't know which one of them has the rights? Or even if any of them have the rights?

            What if even the records of who owns the rights have been lost? It's almost a self-referential problem...in the era before computers, not only works but the legal documents about the works were stored as paper. And paper can get misplaced, or eaten by insects, or destroyed in fires, floods, etc. What happens to a work that there is no way even to find out who owns it anymore?

            Multiply that by the tens or hundreds of thousands of works out there that are lying fallow, and you begin to see that it's not just "a lot of work." It's an immense, totally impossible amount of work. It's akin to the Augean Stables of Greek myth.

            Thus, just as Hercules creatively rerouted a river through those stables to clean them out, Kahle and the co-plaintiffs are hoping to make the problem of finding the rights-holders for abandoned works irrelevant.

            They're not even talking about stuff that people are still publishing and making money off of. If they're doing that, then they know who the rights holders are, and the rights holders care enough about the stuff to keep it available. They're talking about the stuff that's lying fallow and not benefiting anybody.

            To me, this seems like a pretty good compromise between the Mickey Mouse contingent and the Information Wants to Be Free contingent, if it goes through. Let Disney keep Mickey...let people who care about their works keep them. But let us have the stuff that nobody else wants anymore.

            I'm sure that there will be some sort of well-reasoned and fair mechanism for determining what's been abandoned and what hasn't. I don't think it'll be arbitrary. I do think that it will do us a world of good to make sure this information does not get lost.
        • by Chris Burke (6130) on Tuesday March 23, 2004 @04:41PM (#8648715) Homepage
          The only reason we allow the author to have an unnatural monopoly on his idea is so that it is easier for them to attempt to profit off the idea, as an incentive to create the idea in the first place. Eventually, that idea is supposed to pass into and enrich the public domain. That is the purpose of copyright.

          If you are no longer making that idea available, then what exactly are the people gaining from your artificial monopoly? What are you gaining? Nothing. The reason for the monopoly is no longer valid.

          If you don't want a work published, the solution is simple: Don't publish. If you have published it, but later decided you didn't want to... Well, it's too late, in any event.

          Copyright is a bargain between the public and authors. When the public is not benefitting from the bargain, then it should be reevaluated. When neither side is benefitting, then the bargain should be abandoned.
        • Actually, it does (Score:5, Insightful)

          by Sycraft-fu (314770) on Tuesday March 23, 2004 @04:50PM (#8648829)
          According to the constution. The reason why we have copyright is Article 1, Section 8, Paragraph 8 of the constution. It says that congress shall have the power "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries". To that end we got copyrights and patents.

          Notice, however, that it is quite clear about the reasoning. It is to promote progress, in other words, to make sure the work is distributed. Also notice it is clear about the limited times, in that the author can only have control for a while, then it belogns to everyone.

          So it's clear that it is unconstutional to use copright to try and maintain control forever and not share with anyone.
  • Creative Commons (Score:5, Informative)

    by v_1_r_u_5 (462399) on Tuesday March 23, 2004 @04:00PM (#8648309)
    Musicians who are interested in this might also be interested in the creative commons license [creativecommons.org].
    • Re:Creative Commons (Score:3, Informative)

      by panthro (552708)

      Creative Commons licenses can apply to a lot more than just music. They are currently used with writings, visual arts, photography, film/theatre, music, research, and more, and could potentially apply to anything that a copyright can.

  • by spun (1352) <loverevolutionary@@@yahoo...com> on Tuesday March 23, 2004 @04:05PM (#8648358) Journal
    We have a few things that might help with your plans for world domination. Please take a look at our latest catalog [villainsupply.com]. A man your age could use a nice exoskeleton, or some mutant super powers. We have great deals on lairs of all sorts this month, and I know how you love to hide out in a nice lair.

    Yours in Evil,
    Dr. Freidrich E. DeSpayr, MD, Ph.D, Ev.D
    Chairman and Chief Evil Officer, World Domination LLC
    • by spun (1352)
      Moderators of Slashdot! How DARE you mark this post offtopic? Know you not that Mr. Ashcroft was our February 2003 Customer of the Month [villainsupply.com]? We at World Domination LLC do not take lightly to being moderated down. Prepare to meet our blazing hot wrath, you peons!

      Lord Seismodeus
      Marketing Director, World Domination LLC
    • Re:Dear Mr. Ashcroft (Score:4, Informative)

      by nycsubway (79012) on Tuesday March 23, 2004 @04:16PM (#8648477) Homepage
      Ashcroft is a nutcase. He spent $8000 of taxpayers money cover up the bare breasts on the lady of justice statue in Washington DC. Because, as Al Franken says "he didn't want to be photographed next to another boob."

      He also has daily prayer sessions with his staff. Regardless of their faith.

      There are also stories of him asking judges to annoint him with oil when he got into a new position... weird stuff. He's just an all around nut.

      • Didn't Al Franken send questions to Ashcroft and other conservatives posing as a professor at a major university?
        Also I am sure the prayer session are voluntary if he has them and it is nice to see that he does not exclude others, would you rather there be a Chrisitan only prayer group?
        Know way does he ask judges to annoint him with oil, there maybe stories of him doing this but then there are stories of Hillary Clinton channeling Ghandi on the White House roof and I don't believe those either...
      • There are also stories of him asking judges to annoint him with oil when he got into a new position...

        It's in his book. They used Crisco [disinfo.com].

      • by sckeener (137243) on Tuesday March 23, 2004 @04:42PM (#8648722)
        Let us not forget...Ashcroft lost an election to a dead [cnn.com] guy.

  • Pretty sweeping (Score:4, Interesting)

    by AndroidCat (229562) on Tuesday March 23, 2004 @04:06PM (#8648364) Homepage
    6. How does "unconditional copyright" create these problems?

    Under our traditional system of conditional copyright, the overwhelming majority (as much as 90%) of published works were neither registered nor noticed, and thus passed immediately into the public domain, where they were freely usable by others without the need to ask permission.

    Challenging the perpetual extension of copyright is one thing. Going back to the old "no copyright until you register" system is something else, and pretty radical. (Note that GPL stuff very definitely uses copyright as its base. Do you want to have to register every little release to have a valid GPL on it?)
    • GPL has the copyright notice, so it'll still get protection. But, unless you register, you can't win extra damages when someone violates your copyright. IANAL.
      • If someone violates your copyright, you can indeed register after the fact and still sue them for damages.
      • GPL has the copyright notice, so it'll still get protection. But, unless you register, you can't win extra damages when someone violates your copyright. IANAL.

        What do you mean by "protection"? What does "win extra damages" mean? Do you have any links to back this up? This isn't very reassuring for me.
        • Re:Pretty sweeping (Score:3, Informative)

          by DeepRedux (601768)
          There are a number of advantages to registering, according to the US Copyright Office FAQ [copyright.gov] these include

          If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

          I think that all of the RIAA suits for file sharing are based on asking statutory, not actual, damages.

      • Re:Pretty sweeping (Score:2, Informative)

        by AndroidCat (229562)
        Under the current system (in line with the Berne Convention). Under the old system, if you didn't register, that copyright notice isn't valid and means sweet richard all.
      • Eaxctly, but this is only under the unconditional copyright system. If Kahle is successful then these protections won't exist at all and you must register your work to get protection of the law. Each derivative work woudl need to be registered to beprotected by copyright law regardless of the legal status of the originl work. If the work is not protected by copyright the GPL will have a much weaker leg to stand on legally.
      • Re:Pretty sweeping (Score:2, Informative)

        by David Hume (200499)

        GPL has the copyright notice, so it'll still get protection.

        This isn't correct. According to item #2 of the FAQ [stanford.edu], if this lawsuit is succesful, mere "notice" would be insufficient, and instead we would be back to:

        "a conditional copyright system that limited copyright protection to those who took affirmative steps to claim it -- by, for example,

        registering their copyright, marking copies of their work with copyright notice, and renewing their copyright after a relatively short initial period of protec

    • Re:Pretty sweeping (Score:3, Insightful)

      by XaXXon (202882)
      I'd like to say that the parent post is *EXTREMELY* important and must be addressed.

      Most open-source developers take their copyright for granted. One says that his/her code is GPL (or BSD or whatever) and *poof*, like magic, it is.

      I don't know what is involved in registering for a copyright, but I'm sure it's harder than doing nothing.

      These fears may be misplaced, but I'd like someone to address them.
      • Re:Pretty sweeping (Score:5, Interesting)

        by happyfrogcow (708359) on Tuesday March 23, 2004 @04:31PM (#8648623)
        Interesting. Wondering myself what is involved, i went to the U.S. Copyright Office [copyright.gov] online.

        I was pleased to see:

        Literary Works
        Register your book, manuscript, online work, pamphlet, poetry, report, test, automated database, computer program, or other text.

        then, on the next page as step 1 of Literary Works, "Computer programs and databases also are considered literary works." however following at link of examples i found

        "Computer Programs
        A "computer program" is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.

        Copyright protection extends to all the copyrightable expression embodied in the computer program. Copyright protection is not available for ideas, program logic, algorithms, systems, methods, concepts, or layouts."


        This lead me to a 4 page PDF File [copyright.gov]. It says what you need to submit and that it costs $30. It is a somewhat interesting read, but offers no explanation of what exactly is copyrightable if, as they previously said "Copyright protection is not available for ideas, program logic, algorithms, systems, methods, concepts, or layouts." That leaves me with nothing but comments, and *maybe* data structures. However data sctructures are nothing more than a layout of data in memory, or an idea encapsulating data layout.

        I don't get it.
        • Re:Pretty sweeping (Score:3, Informative)

          by elmegil (12001)
          I believe what they're saying is that the IMPLEMENTATION AS A WHOLE is copyrightable, but the ALGORITHM (and all those things that might be reasonably considered part of the algorithm, e.g. program logic--if I could copyright "if()then;" I'd be a wealthy man, but that is specifically disallowed) is not.

          Of course, in the face of business process copyrights, that doesn't make much more sense.

          • But "Implementation as a whole", is that not just a "system" which they stated as not copyrightable?

            This is all pretty interesting. I'm going to have to do some more fact finding, maybe find a lawyer, and go through the process to see what happens. US$30 isn't a whole lot to spend on a test run. Surely, it would probably cost a few hundred dollars for a consultation session with a lawyer though.

        • Re:Pretty sweeping (Score:4, Informative)

          by pavon (30274) on Tuesday March 23, 2004 @04:46PM (#8648769)
          It is the difference between copyright and patents. When you copyright your create work (source code) you only get protection for that specific work. You do not get protection for the ideas in the work, which can be freely used by anyone in their own programs, so long as they don't copy your code verbatim. As a comparison if someone wrote an article about sheep shearing methods, it would be an infringement of copyright to copy his article verbatim, but not to write your own article discussing the same methods.

          That is all it is saying about not being able to receive copyright protection for ideas and algorithms.
    • Re:Pretty sweeping (Score:3, Insightful)

      by PCM2 (4486)
      Yeah, I'm not sure I get his arguments here. The idea that authors' works are "locked up" against their will seems ludicrous at the face of it.

      I've created works that I have specifically registered with the copyright office. An example is the comic strip, below. I registered this work to protect myself from people reprinting the strip against my will for financial gain. For instance, I don't want to be browsing through a book in a bookstore and come across my strip printed there, and I want to have the ful
      • Re:Pretty sweeping (Score:2, Insightful)

        by Atanamis (236193)
        The issue seems to be primarily dealing with "orphan works", by which the article refers to works that were initially marked with a copyright notice but whose owners cannot now be determined. Obviously if the work contains a means of contacting the owner, it should be fairly simple to determine whether that owner minds if the work is used. It is when the owner cannot be contacted that long unrequested copyright terms become a problem.

        In the case of your comic, twenty years from now you probably won't care
      • Re:Pretty sweeping (Score:4, Informative)

        by angle_slam (623817) on Tuesday March 23, 2004 @05:04PM (#8648983)
        You're right that Disney is more likely to register everything they produce. That is not the point. They are targeting relatively unknown works that can't be published because of copyright reasons. For example, many old movies are salvageable but are deteriorating. But one can't just make a DVD of the movie because they have to figure out exactly who owns each part of the movie. Or an old magazine with a bunch of different articles. One who wants to republish it currently has to go about finding out who exactly owns the copyright to the collection and to each of the stories. Or they could not republish it, which is what is happening today.
    • Re:Pretty sweeping (Score:3, Informative)

      by SydShamino (547793)
      Every source file includes a copyright notice, correct?

      Thus, they are protected under the traditional system. He says "noticed" in the text.

      "no copyright until you register" is completely different.

      If someone choose to publish source code without putting a copyright notice of any sort in the code, then under the traditional system that code would immediately become public domain. If, however, they bothered with a "Copyright 2004 Syd Shamino. All rights reserved except those provided by the General Pub
    • Re:Pretty sweeping (Score:3, Insightful)

      by iminplaya (723125)
      Going back to the old "no copyright until you register" system is something else, and pretty radical.

      It also makes copyright an almost acceptable premise. To expect every idea to be "born copyrighted" is just a little too much. How greedy and lazy can one get? They want all this protection and don't want to put up ANY effort to apply for it. Talk about wanting a free lunch... If you want to have it and keep it, you should have to go out and get it and maintain it.
    • by sulli (195030) * on Tuesday March 23, 2004 @04:36PM (#8648660) Journal
      To claim as the plaintiffs do that unconditional copyright has no benefits to the author is ludicrous. The administrative burden of registering every damn thing (website? slashdot comment?) you publish is not something I, or anyone else who wishes to have his/her works protected by copyright for any length of time, wish to have restored.

      The abandonware issue is more substantial. A requirement that copyright be renewed for $1, or that it be deemed abandoned if nobody is available to offer the rights after a reasonable period of time, is more rational. Perhaps one of those evil "activist judges" will so find.

    • Re:Pretty sweeping (Score:3, Informative)

      by pavon (30274)
      I was very much in favor of what they were trying to do in the Eldred v. Ashcroft case, and can't understand why any judge could possibly think that extending copyright terms on existing works could encourage innovation. But I have to say that my initial reaction to this is that I don't like it at all. One of the nice features of copyright in my mind is the fact that it doesn't require going through a beurocratic agency - your copyright is assumed at the time of creation. If we go back to the old system it
      • Re:Pretty sweeping (Score:3, Insightful)

        by jc42 (318812)
        I don't see how unconditional copyright creates a violation of free speech.

        Well, under the current rules, this text is copyrighted as soon as I hit the Submit button. However, I don't know whether I am the copyright holder. It's possible (and on /. quite likely ;-) that someone else has "published" the same words previously, and they are the copyright holder.

        So I may be the copyright holder, or I may be a criminal engaged in copyright iinfringement. How can I know which I am? Right - I can't. There
    • This problem really arises because of the inherent differences between software and other works, like books for example.

      When an author writes a book, it probably takes a significant amount of time, goes through an editorial process, and in the end is copyrighted as a completed work. There might be minor corrections later on, but the work is basically finished.

      Software, on the other hand, evolves over time. The first version of something probably doesn't take that long to make, depending on the project. A
    • not radical at all (Score:3, Insightful)

      by hak1du (761835)
      Going back to the old "no copyright until you register" system is something else, and pretty radical.

      With copyright, you get a government-guaranteed monopoly, backed and enforced by police and courts, paid for by tax payers, lasting decades. It seems entirely reasonable to ask you to at least affirmatively assert your copyright.

      (Note that GPL stuff very definitely uses copyright as its base. Do you want to have to register every little release to have a valid GPL on it?)

      Yes, of course--why wouldn't I
  • by lukewarmfusion (726141) on Tuesday March 23, 2004 @04:07PM (#8648374) Homepage Journal
    Obligatory IANAL. I think "unconditional copyright" is a good idea. I might write a hundred songs (or poems or whatever) in a year and not make any money off of them. It costs money to register your work as copyrighted.

    Not needing to register each work simply puts the burden on the "fair use" user. If they want to use my work, then I can grant them the rights to use it. But that doesn't mean that I give up copyrights.

    If I am required to register my copyright, then I lose some of the ability to protect it.

    As it stands, I am able to create a work and the copyright exists immediately. I can even register the copyright after an infringement takes place and win in a lawsuit.

    Want to prove that you created the work on a certain date? Mail it to yourself and don't open it.
    • That's my feeling too. Those, who wish to put their work into public domain are welcome to do that -- Lessig's FAQ is somewhat misleading at that.

      The case is about people, who don't care to indicate their intentions...

    • Want to prove that you created the work on a certain date? Mail it to yourself and don't open it.

      The "poor man's copyright" is a myth - it is not legally binding in a US Court of Law - info on how to legally copyright your work [copyright.gov].
      • From the very link you posted:
        The way in which copyright protection is secured is frequently misunderstood. No publication or registration or other action in the Copyright Office is required to secure copyright. (See following Note.) There are, however, certain definite advantages to registration. See "Copyright Registration."

        Copyright is secured automatically when the work is created, and a work is "created" when it is fixed in a copy or phonorecord for the first time."


        Mailing it to yourself is a way o
        • I agree copyright exists upon creation as defined on the site - that wasn't the question. Mailing the document to yourself is absolutely meaningless - any individual can mail himself a unsealed envelope (or sealed and steam it) - it's an old hack that has been utterly disproved.
    • I think "unconditional copyright" is a good idea. I might write a hundred songs (or poems or whatever) in a year and not make any money off of them. It costs money to register your work as copyrighted.

      Not needing to register each work simply puts the burden on the "fair use" user. If they want to use my work, then I can grant them the rights to use it. But that doesn't mean that I give up copyrights.

      If I am required to register my copyright, then I lose some of the ability to protect it.


      A few comments:
    • Hrm. (Score:3, Insightful)

      by Yobgod Ababua (68687)
      You seem to have a few misconceptions.

      "If they want to use my work, then I can grant them the rights to use it."

      Only if they can find out that you are the copyright holder and if they can also find out how to contact you.

      The problem that this is trying to address is the thousands of works that currently cannot legally be archived or utilized due to the near-prohibitive cost of trying to research who (if anyone) is the proper person to contact.

      "If I am required to register my copyright, then I lose some
    • It costs money to register your work as copyrighted.

      You can bundle things and get the cost down to nothing.

      Want to prove that you created the work on a certain date? Mail it to yourself and don't open it.

      Courts will just laugh at that. After all, you can just send an unsealed envelope to yourself.

      If you want to establish priority for an invention, you need to have it witnessed by someone who actually understands the invention. For copyright, it's not clear that that even helps, because...

      If I am
  • by a-aiyar (528921) on Tuesday March 23, 2004 @04:09PM (#8648396) Homepage
    Robotech Master wrote:
    People may remember librarian Brewster Kahle as the man behind Archive.org's Wayback Machine and the Internet Bookmobile.

    I remember Brewster from when he developed WAIS ......

  • by Lonath (249354) on Tuesday March 23, 2004 @04:11PM (#8648413)
    After all, licenses like BSD and MIT/X are basically public domain anyway. The only difference is that they explicitly disclaim warranty. This is the only reason why I have released software into MIT/X instead of PD. I don't want to get sued if I release it under PD. This would mean I would have to register everything I do with the copyright office or it's automatically under PD? I would support this if there was a way to release writings into PD without incurring any liability for how they are used. I hope they take that into account.
  • Berne convention (Score:5, Interesting)

    by Boing (111813) on Tuesday March 23, 2004 @04:13PM (#8648444)
    The Berne Convention, mentioned in the faq, requires that member nations may not impose formalities (read: registration) on works from other member nations.

    Since authors are, largely, unlikely to care about the rights of people who want to derive from their works, couldn't a reinstatement of copyright registration for works within the United States theoretically drive authors to nominally publish their works in other nations (in order to get automatic protection as per the current U.S. system), and thus drive creativity out of the U.S.?

    I don't know if this would occur in practice, and I'm not saying it's a good reason to maintain a flawed system, but it seems like something to think about if/when we design new copyright policy.

    • Re:Berne convention (Score:4, Interesting)

      by dmayle (200765) on Tuesday March 23, 2004 @05:31PM (#8649261) Homepage Journal

      Ahhh, you missed the wording in the FAQ. The Berne convention says nothing about works from other member nations. It prohibits imposing formalities on works from authors from other member nations.

      Changing where you publish from doesn't change your nationality, unless you stay to apply for citizenship, and then through direct action before the U.S. judicial system, revoke your own U.S. citizenship (If you don't formally revoke your citizenship in front of the U.S. judicial system, you will retain dual citizenship, even if that's in contradiction with the laws of your new country).

      Finally, I think you overestimate the loss of author control this would bring about. Authors lived under a system of registration for literally hundreds of years before it just recently changed.

      • Re:Berne convention (Score:3, Interesting)

        by argmanah (616458)
        Changing where you publish from doesn't change your nationality, unless you stay to apply for citizenship, and then through direct action before the U.S. judicial system, revoke your own U.S. citizenship (If you don't formally revoke your citizenship in front of the U.S. judicial system, you will retain dual citizenship, even if that's in contradiction with the laws of your new country).

        Actually, that's not entirely true. While you are correct is saying that being naturalized by a foreign nation does no
  • Abandonware (Score:5, Interesting)

    by panthro (552708) <mavrinac@gmailPASCAL.com minus language> on Tuesday March 23, 2004 @04:13PM (#8648445) Homepage

    Would this case, if ruled in Kahle's favor, make abandonware legal?

    People have been distributing old, abandoned software (mostly from the 1980s) on web sites for years, knowing that it is illegal but under the likely correct assumption that they are doing the publisher no harm whatsoever. I have never heard of any true abandonware resulting in legal action, but currently a company that holds the copyright for a program can go after someone distributing it online for free. It makes no difference if they still sell it, support it or even remember it exists.

    Of course, there would have to be some kind of definition for what constitutes abandonware, but that would be the case with all other works as well so I'm confident they'll figure that part out. I hope Kahle wins this one, personally.

    • Of course, there would have to be some kind of definition for what constitutes abandonware...

      This is why renewal should be mandatory. If you don't renew your IP every 5 years for instance, it should be considered abandoned and go to public domain, and no take backs.
    • Re:Abandonware (Score:4, Interesting)

      by runderwo (609077) <{runderwo} {at} {mail.win.org}> on Tuesday March 23, 2004 @05:28PM (#8649207)
      I was recently threatened with a lawsuit because the BSA found a copy of Watcom C++ 10 on my web server. You can find more details at the Open Watcom newsgroup from a few weeks back, under a thread about library licensing.

      I was absolutely dumbstruck that they would spend the time and money to search out and C&D me on such an inconsequential item, an 8 year old compiler. Even more ludicrous is that this compiler was released as open source not too long ago. It is possible that people whose code was not included in the open source release might not like it to be distributed without permission, but they claimed to be acting on behalf of Sybase. The people who open sourced Watcom in the first place!

      I removed the file after an fruitless email exchange and several calls from my ISP. It's just not worth the bother to fight the copyright cops, no matter how illogical their actions are.

  • by SillyNickName4me (760022) <dotslash@bartsplace.net> on Tuesday March 23, 2004 @04:14PM (#8648454) Homepage
    From the FAQ:

    > a freedom, it should be noted, that was granted by an author's voluntary decision not to register his work.

    One can as easily reason that first of all, in the old situation, many people would not obtain a copyright simply due to lack of knowledge, means for registration etc.

    In the new system an author can still take the voluntary decision to keep a work free by explicitly putting it in the public domain.

    The FAQ argues that this makes life more difficult for people trying to preserve things in the digital domain, but that is soemthign that I believe can be addressed by fair use. The FAQ also claims that the new system does nothing to protect authors, but that is not true, it makes that authors can do waht they are best at, creating works.

    The term of copyright, the unfair limitation of user rights, and fair use are the issues, not automatic copyright.
  • by baudilus (665036) on Tuesday March 23, 2004 @04:14PM (#8648460)
    I may be missing something, but I think the current unconditional system is OK if other considerations are made. Works are copyrighted regardless of the will of the author, which seems OK. The only problem I see is with proof of ownership documents. I imagine someone falsely claiming that "I wrote this and authorized so-and-so to use it in his college thesis."

    The only solution I see is that if the author WANTS to grant rights to any or all, he must prove ownership beforehand. Otherwise, it's more of a hinderance than a help.

    The upside is that owners of works who have not explicity copyrighted their material still have rights.

    Then again, it may just be bunk.
  • "But many books fall into a nether region. These are works that are not commercially viable and therefore not widely available to the public, but are nevertheless subject to continuing copyright protection."

    In the event that they cannot convince Ashcroft, they could also start another project which would automate and simplify the process of obtaining this permission.

    If anything, making it easier to access this type of information would be beneficial for both the authors and those in search of using th
  • by ewhac (5844) on Tuesday March 23, 2004 @04:20PM (#8648516) Homepage Journal

    This suit seeks to have the laws that implement the Berne Convention struck down as unconstitutional. However, my highly inexpert reading of the Constitution reveals that the Constitution and all treaties entered into by the US are the supreme law of the land. The Berne Convention is just such an international treaty. Thus, it would seem that the supremacy clause trumps any argument Lessig et al may bring before the court, since the terms of the Berne Convention enjoy equal footing with the Constitution.

    Now, if the US enters into a treaty that is in direct opposition to the Constitution, which document wins? I have no idea if this issue in Constitutional law has ever been addressed.

    Schwab

    • Now, if the US enters into a treaty that is in direct opposition to the Constitution, which document wins? I have no idea if this issue in Constitutional law has ever been addressed.

      It would serve as a legally binding way of proving the country's congress is a band of drooling morons, as, in most civilized countries, such treaties signed by the executive must be approved by congress. (like, for example, Free Trade Agreements)

    • Actually, the article addresses this.

      The Berne Convention is the most significant international treaty governing copyright, and it includes a provision prohibiting member states from imposing copyright formalities on the works of authors from other member states.

      One way would be to re-impose formalities for all works of U.S. authors -- these are most works published in the U.S., and Berne doesn't prohibit signatory nations from imposing formalities on their own authors.

    • by cpt kangarooski (3773) on Tuesday March 23, 2004 @06:42PM (#8650024) Homepage
      Yeah, that's a common misreading. Treaties enjoy equal status with federal law, not the Constitution.

      For example, you could have a treaty that directly imposed a tax on Americans, but since the Constitution requires that the House propose taxes, and treaties only involve the President and the Senate, that treaty is not going to have any force.
  • Unconstitional? (Score:5, Insightful)

    by Jay Bucks (697483) on Tuesday March 23, 2004 @04:21PM (#8648527)
    Obviously perpetual copyrights are unconstitional. It explicitly says so in Article 1 of the Constitution...

    "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;"

    Notice how no execeptions are made for abandonware, shareware, vaporware, freeware or any other type. So now the question to ask seems to be what constitutes limited? My limited copyright time doesnt seem to equal Mickey Mouse's.

    Jason
    Argue About Stuff [arguecity.com]

  • by frankie (91710) on Tuesday March 23, 2004 @04:21PM (#8648528) Journal
    Sadly, I don't see Kahle winning this case. The current Supreme Court has shown itself to be quite unwilling to smack down Congress if the end result is "inconvenient". For example, they let Veeck vs SBCCI [google.com] stand, which allows laws to be copyrighted by private entities.

    Not to mention, the Berne Convention [wikipedia.org] is a world-wide treaty (and well-liked by megacorps) that may as well be carved in an adamantium tablet. No way they'd be willing to disadvantage US content owners while foreign copyrights are being extended just as freely.

    • For example, they let Veeck vs SBCCI stand, which allows laws to be copyrighted by private entities.

      No, no. The Fifth Circuit ruled for Veeck, and the Supreme Court let that stand. Veeck put a "copyrighted" building code on the Internet, and the Fifth Circuit ruled this was legal, whether the author of the code liked it or not.

      • Hooray, score one for the good guys. I am so damn happy that I was wrong [texoma.net] about the [techlawjournal.com] Veeck case [gtwassociates.com].

        I spent HOURS googling about Veeck a couple weeks ago, and somehow picked bad keywords every time. All of the search results referred to the original case, the three-judge appeal, and/or the certiorari, but never the full court ruling [google.com]. Damn page rot.

        Thank you for the correction. It's a fucking wonderful ray of sunshine.

  • by GPLDAN (732269) on Tuesday March 23, 2004 @04:35PM (#8648657)
    The history of the Supreme Court shows very little traction for the reframing of constitutional questions and going back up. Even though they make a big deal about how this isn't Eldred vs. Ashcroft, it really is a distinction the court will find tenuous. They got shot down on the copyright extensions, they will get shot down on the inclusionary aspects of this.

    I believe they are right and the court is wrong on Eldred, but until a Democratic president can get in for another 8 years and Kennedy and Scalia get the boot, they won't win.

    • but until a Democratic president can get in for another 8 years

      Let's not forget that the last "Democratic" president sold us down the river by signing the DMCA (Digital Millenium Copyright Act) and CTEA (Copyright Term Extension Act) into law. His name is Bill Clinton.

      I consider the CTEA the more egregious of the two, as it is a complete handout to a few corporate interests with nothing given back to the public in return. But this seems to be congress' standard operating procedure (SOP) these days.

      The
  • by Prototerm (762512) on Tuesday March 23, 2004 @05:10PM (#8649049)
    The underpinnings of the GPL is copyright law. If that law now required contributors to go through the "copyright formalities" for them to get copyright protection under the law, then wouldn't this result in the contributed code ending up in the public domain, since a lot of people wouldn't have the time or the money to go through the process?

    I can just see the legal tangle such a change would cause for Linux, et al. I also question how well such a change would work with the Berne Convention, since we're not talking about a novel here, written in one country, but a product written by hundreds of contributors from around the planet, both US and elsewhere. IANAL, but this looks like it would be a real mess, with no one winning but the lawyers.

  • Just curious (Score:5, Interesting)

    by jsebrech (525647) on Tuesday March 23, 2004 @05:13PM (#8649068)
    I'm wondering about something:

    Can anyone but the owner of a copyright sue you for copyright infringement? The reason I ask is because I'm thinking about this concept of saving abandoned art. If no one is left alive who provably owns a work, then who is going to sue you if you copy it? If nobody can be found who has legal standing, even if copying would be illegal, wouldn't it be not much of a legal risk to go ahead and copy the work?
  • by tx_kanuck (667833) on Tuesday March 23, 2004 @05:50PM (#8649486)
    What if there was a compromise between the two systems? For example, as an author, I automatically got 5 or 10 years of automatic copyright protection of a work upon creation. This gives me time to create something and then decide if it is going to be profitable enough to continue copyrighting. At the end of the grace period, if I want to keep the item copyrighted, I have to register it for a fee with the government. This copyright then lasts for whatever the government says (currently set at 50+ life of the author).

    Hell, though this system you could even set different fees for different lengths of copyright (up to a max # of years). You have a piece of software? Set it's copyright for 25 years and save yourself 1/2 the fee. If it is still profitable at the end of the term, you can extend the copyright to the remainder of the term for the remainder of the fee. Granted, the fee may have gone up by then. You have a comicbook character that might be profitable the whole time? Copyright the whole time and pay the full fee.

    But if the author does not think the work is worth taking the time to do a few hours of research over a period of 5 or 10 years, the work becomes public domain. And don't tell me that 10 hours of research, plus 1 hour to fill out forms for each piece of work is excessive. This is spread over a few years after all. How many people are going to create nothing but profitable works?

    Just my 2 cents.
  • by Rogerborg (306625) on Wednesday March 24, 2004 @04:51AM (#8654007) Homepage

    Copyright is now automatic and mandatory. You, as the creator of a work, cannot voluntarily put it into the public domain. All that you can do is to license it with the most open and explicit license that you can think of. See Slashdot's Terms and Conditions [osdn.com] for an example of a licensing scheme that you've agreed to, whether you know it or not. Saying "this work is in the public domain" is not sufficient, as "public domain" has no meaning in law except for works for which copyright has expired.

    If you think this isn't an issue, consider what happens if you unrestrictively license a body of work, and then step in front of a bus. The copyrights pass to your estate, and for the sake of argument, we'll say that's an Evil Nephew. Now, how sure are you that your license is "irrevocable and in perpetuity"? Are you absolutely sure that it's water-tight? Can the Evil Nephew revoke the license? Can he prevent people who currently have copies from making futher copies and passing them on?

    It gets even worse where the intent and licensing is unclear. If a work doesn't bear a copyright claim, a clear license, or other identifying information, how do you even know whether you're allowed to copy it? The creator, or his Evil Nephew, could turn up any day and sue you for reproducing their work. It's safer not to duplicate and distribute at all, and that is very much not what copyright law was intended to do. It was intended to encourage dissemination of work. Implicit mandatory copyrights creates a culture that strangles the public domain.

    The core of Kahle vs Ashcroft is that copyrights should be something that you actively choose to claim. If you don't, for example, care what happens to your Slashdot postings, just don't put "(C) 2003 $YOUR_NAME" on them. It's pretty much as simple as that.

This screen intentionally left blank.

Working...