Kahle vs Ashcroft: Copyright Battle Continues 390
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.
Pretty sweeping (Score:4, Interesting)
I'm torn on this issue... (Score:5, Interesting)
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.
I guess my age shows ..... (Score:4, Interesting)
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 ......
This could be bad IMO (Score:4, Interesting)
Berne convention (Score:5, Interesting)
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.
Abandonware (Score:5, Interesting)
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.
One small problem with logic here. (Score:3, Interesting)
> 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.
I don't see a problem here. (Score:3, Interesting)
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.
Orphan works (Score:4, Interesting)
Perhaps what we need is some sort of system that if a work has not been used commercially for x period of time, it should be deemed to have no commercial viability and be released to the public domain.
Trying to overturn Berne? (Score:5, Interesting)
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.
Re:Hasn't this already been settled? (Score:5, Interesting)
- 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?
"If the author doesn't want the work released" (Score:2, Interesting)
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 the author to request and renew copyright merely ensures that they are still interested in maintaining the rights to their work.
Re:Pretty sweeping (Score:5, Interesting)
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:I'm torn on this issue... (Score:3, Interesting)
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:
If you're not able to make a profit from a work within 50 years of creating it, then it's so unlikely you'll ever make a profit from it, that it just might as well be public domain. Remember that the goal of copyright is to ensure the public good, by promoting the creation of useful works in the arts and sciences.
Secondly, how about a system where registration and renewals would only start after 50 years past the date of creation? Most authors by that time would be either dead, or not caring anymore who copies their work. I would predict the vast majority of works over 50 would become public domain, while at the same time, such a system wouldn't have the problems you mention. Any opposition to a system like this?
Just curious (Score:5, Interesting)
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?
Re:Hasn't this already been settled? (Score:5, Interesting)
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.
Software is a special case (Score:3, Interesting)
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 single contribution to an open source project could be quite small. And it's likely to change sometime down the road.
The two things are just so different that having them governed by the same system is just silly, IMHO.
Re:Abandonware (Score:4, Interesting)
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.
Re:Berne convention (Score:4, Interesting)
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:Dear Mr. Ashcroft (Score:3, Interesting)
Here's another [cnn.com]. And another [guardian.co.uk]. And another [kcstar.com]. Just look for "oil" on the page.
What about a compromise? (Score:5, Interesting)
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.
Re:Hasn't this already been settled? (Score:3, Interesting)
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.
Re:The Court doesn't like repeat challenges (Score:3, Interesting)
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.
There is no indication that the current presidential candidates (esp. frontrunner Kerry) would not do the do the same. Indeed, his website mentions nothing about copyright issues or "digital rights".
and Kennedy and Scalia get the boot, they won't win.
Appointments to the court are for life. So the only way they get the "boot" is if they "kick the bucket".
Let's not forget the decision in Eldred vs. Ashcroft (challenging CTEA) was 7 to 2, meaning it was not even close.
I had thought (along with others) that the current court's propensity to limit federal powers would come into play here, but it did not. Essentially they said that while extending copyright terms may be a bad idea, it is within congress' power to do so.
While I'm glad to see Kahle vs. Ashcroft, it is for this reason I believe that it is doomed.
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.
The court does occasionally revisit decisions by hearing variants of issues that have appeared before them in the past, and is how they occasionally reverse themselves.
I do not think that they will get shot down because of the "inclusionary" aspects of the case.
Rather they will get shot down because most judge's eyes "glass over" when you mention copyright to them, and usually default to giving more rights to copyright holders.
This coupled with legislators favoring corporate over public interests is why we have the vast expanse called copyright law today.
Re:Hasn't this already been settled? (Score:2, Interesting)
Re:Berne convention (Score:3, Interesting)
Actually, that's not entirely true. While you are correct is saying that being naturalized by a foreign nation does not automatically cause loss of citizenship, that person does not automatically retain citizenship either. If the person commits the act with the intent of renouncing his U.S. citizenship, then the citizenship is lost.
The way they handle intent is they simply ask you the next time a question of your citizenship comes up before the consulate. If you say you intended to keep it, you keep it. If you say you intended to lose it, you lose it.
You can also formally renounce your citizenship at any U.S. Consulate, or by affirming in writing to any U.S. Consular officer after being naturalized by a foreign country (basically, making the issue come before them now, and affirming you intended to lose it).
Re:I'm torn on this issue... (Score:3, Interesting)
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 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.
It's unclear whether you can claim copyright on unpublished works at all. After all, the deal is: we give you protection in exchange for you publishing the work and the work eventually falling into the public domain. If you try to restrict fair use, you are violating your part of the copyright bargain.
Good news... (Score:3, Interesting)
Re:I'm torn on this issue... (Score:3, Interesting)
No, I want a way to discover that it's your work, and ask you if I can use it (possibly paying you a royalty). Under the current system, this information is usually impossible to find.
Case in point: I've sent letters to a number of music publishers saying that I have a tune in my mind, and I'd like to know if it's a tune that they own the copyright to. I ask them how I can discover if they own a particular tune.
So far, the answer from every one of them is that they'd be happy to sell me copies of all their music publications.
That's right; the only way I have, according to the publishers, is to purchase a copy of everything they publish and search it. This could easily cost several million dollars, and require a large warehouse to hold the books. The publishers consider this a reasonable answer to the question. And note that this isn't even possible with books that are out of print but still covered by copyright, since you usually can't buy them at all.
Actually, of course, there is one effective way that a musician can discover if a tune is copyrighted. You start performing it in public, or start selling a recording. If it is copyrighted, you'll be hit with a lawsuit; if not, you won't. (Well, maybe you will anyway; fraudulent copyright claims are common.
As far as I can tell, this is the only practical way to discover if a tune is copyrighted.
It would be really useful if there were a registry where I could submit a tune and be told whether it's a close match to anything in the registry. It would be especially useful if the registry could give me contact info for the copyright holder. We have the technology to do this now, but there's no such registry.
Re:Dear Mr. Ashcroft (Score:2, Interesting)
A-theism: without theism. An atheist is a person without a god belief and that is all. A man raised by wolves in the wilderness is an atheist not because he believes that a god does not exist; he is an athiest because he has no conception of what a god is.
The problem with saying that atheism has not been proven is that the burden of proof lies with the person making the claim. If I say that invisible pink unicorns exist then the burden of proof falls on me. It is my job to prove that they exist, not your job (maybe you are an aunicornist) to prove that they do not. Likewise when a theist makes the claim "A god exists" it is their job to prove the existence, not the job of the atheist.
An agnostic is a person who believes that man can never have knowledge about a god. An agnostic would say that we can't say if God exists or not because this is impossible information for humans to know. Agnosticism is the positive belief that "Man can never know knowledge about God." While athiesm is the lack of a belief in a god, a negative. Agnosticism is one of the more misunderstood religious beliefs. If you do not believe that man can never have knowledge of God then you are not an agnostic.
-Al
Synopsis of the issue (Score:3, Interesting)
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.