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The Courts Government United States News

Internet Archive Loses Copyright Fight 412

Posted by michael
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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Internet Archive Loses Copyright Fight

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  • by which way is up (835908) on Tuesday November 30, 2004 @03:50PM (#10956368)
    Wow, that sucks.
  • Yay! (Score:3, Funny)

    by Anonymous Coward on Tuesday November 30, 2004 @03:52PM (#10956401)
    Another win for big business over the little guy! Go Disney!
  • Relocate (Score:2, Insightful)

    by stecoop (759508)
    Relocate the server to some small island in international waters or some country that doesn't give a Flying...ya know... about U.S. laws like North Korea.
    • not a coincidence that my last accepted story was about just that [slashdot.org].
    • Relocate the server to some small island in international waters or some country that doesn't give a Flying...ya know... about U.S. laws

      (I'm intentionally cutting that quote short)

      While your suggestion may indeed be meaningful with respect to "some small island in international waters", relocating your server to a country that doesn't pay attention to United States laws (there are several of those) isn't going to help you a bit. This legal case isn't about challenging overbroad U.S. legislation (for wha

  • by Nine Tenths of The W (829559) on Tuesday November 30, 2004 @03:54PM (#10956417)
    I thought abandonware was defined as software that was no longer commercially available or supported. What's that got to do with copyright?
    • by archipunk (649241) on Tuesday November 30, 2004 @04:03PM (#10956532) Journal
      I thought abandonware was defined as software that was no longer commercially available or supported. What's that got to do with copyright?

      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.

      • Software is subject to copyright law.
        I think that proprietary software should not receive copyright protection unless the source code is put on deposit (at the publisher's expense) with the copyright office. If the publisher does not wish to do so, let them rely on trade secret protection.
    • by kfg (145172) on Tuesday November 30, 2004 @04:13PM (#10956659)
      What's that got to do with copyright?

      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
      • by Anonymous Coward

        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.

        That's because taking your car would be an act of theft, leaving you with no car. It is not the same as copying a program, whereby you would not lose anything tangible.

        If a company is not selling the product anymore, then how can copying a program deny them a sale? They're not making any money off of it.

        • That's because taking your car would be an act of theft, leaving you with no car. It is not the same as copying a program, whereby you would not lose anything tangible.

          Sure, but consider extending that analogy a little. Instead of stealing his car, you simply head down to his garage in the middle of the night with a team of designers. You scope out his wheels, make some notes, and go back to your own garage wherein you assemble a copy of his car.

          A software program isn't simply a collection of parts, m

        • If a company is not selling the product anymore, then how can copying a program deny them a sale? They're not making any money off of it.
          One could conceivably argue that it deprives them of competitive advantage. Eg. even though Microsoft no longer sells Win98 having Win98 available freely would hurt WinXP sales. Even if one person chose that Win98 is good enough and they don't need WinXP, that is lost revenue.
        • Here is a related topic which occurs regularly in the fansub circles of Anime.

          A well loved anime, KOR, was not licensed for distribution in America. As a result, a fan group subtitled and released the entire series for free, using the arguement that since it wasn't licensed for sale in America, they weren't hurting anyone. This was back in the good old dual vcr and tape days. Because this was a popular anime, pretty much anyone who wanted to could get a copy of the fansubs for the price of the tapes and th
      • Not Quite Right (Score:4, Interesting)

        by Alaren (682568) on Tuesday November 30, 2004 @04:28PM (#10956802)

        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.

    • by mopslik (688435) on Tuesday November 30, 2004 @04:16PM (#10956690)

      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.

      • Or even worse, the company has gone out of business but the copyrights have passed on to stockholders or other creditors in a chain with more begats than the Bible, and who knows where the rights are now. It's probably safe to do things with it, but there'll always be an IP submarine waiting out there for the right moment to strike. (Just look at how junk patents are acquired from mostly-dead companies by litigious b-tards.)
        • by AndroidCat (229562) on Tuesday November 30, 2004 @05:00PM (#10957206) Homepage
          I should mention that this effects me personally. I used to work for a small coin-op arcade game company, and we did a game back in 1983. The company is long gone and the last Intrepid probably died years ago too.

          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.)

      • by Convergence (64135) on Tuesday November 30, 2004 @08:36PM (#10959256) Homepage Journal
        And then it continues with ''Well, we have a new program that does the same thing. That will be $89.99''

        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.
    • The free availability of Abandonware is based not on the fact that its free from copyright - I don't think anyone said otherwise. Its based on the fact that it seems morally right, and it is really unlikely that the copyright holder will give a flying fsck about their old crap that they're no longer making a dime over.
      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
    • Try to host a website that hosts software for the original Apple II* or TRS-80**. You might make it as long as 18 months before getting your C&D, but you will get it.

      * Apple itself is fairly enlightened about their own software for vintage computers, but much of the third party stuff has been bought and sold over the years, and it's anybody's guess who even owns the copyrights. That doesn't stop them from claiming it, however

      ** Alot of the TRS-80 was in-house Tandy, does anyone actually know what t
  • Abandonware, ahh.. (Score:5, Insightful)

    by Staplerh (806722) on Tuesday November 30, 2004 @03:54PM (#10956419) Homepage
    As a long-time consumer of abandonware, this is horrible news. If the product is not available for sale, I would aruge that common sense dictates that the public sharing of the product hurts nobody as the copyright is not being actively protected! The persecution of Abandonware when the programme is still available for purchase as part of a 'legacy' series is understandable, but otherwise it is rediculous.

    Besides, the ability to play the games that I once oggled over in PC Gamber but couldn't afford is really quite something.
    • This is an awful argument. Just because something is no longer for sale to the public DOES NOT mean the copyright should no longer apply, thus taking control away from the owner/creator.

      The copyright is not dependent upon the owners ability/desire to distribute it. So the copyright should not be any less enforceable should the product no longer be available for sale.
      • by rcw-work (30090) on Tuesday November 30, 2004 @04:08PM (#10956599)
        Just because something is no longer for sale to the public DOES NOT mean the copyright should no longer apply, thus taking control away from the owner/creator.

        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.

        • by Mustang Matt (133426) on Tuesday November 30, 2004 @04:27PM (#10956788)
          I create some software.

          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.
          • Uh, I think you and I both know that's a horrible example.

            What has happened in the vast majority of "abandonware" cases is the company has gone under, has been dead for some time, and NO ONE has made any attempt to make the software available for purchase.

            And let's face it, if your software was relevant five years ago, it won't be now. At least not in its five-year-old form. Heck, a lot of software written five years ago doesn't even RUN on the newest operating systems, or if it does, it doesn't run well.
          • by SeattleGameboy (641456) on Tuesday November 30, 2004 @05:08PM (#10957313) Journal
            That would all depend on whether or not you or your company owned the copyright.

            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.
        • by OWJones (11633) on Tuesday November 30, 2004 @04:31PM (#10956843)

          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

          • That doesn't give someone the right to beg, borrow or steal a copy and distribute it

            You want trade secret law, not copyright law.

            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.

            U.S. law does not provide "moral rights" protection. [rbs2.com]

          • by frankie (91710) on Tuesday November 30, 2004 @05:01PM (#10957228) Journal
            the deal is that you get to see it when the copyright expires

            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.
        • Authors agree to produce work for society, society agrees to give the author a fair chance at compensation for their work.

          In general, this is true. But what if part of the deal the author wants is to withhold his work from further distribution so that he may proceed with production and sales of a newer version of his "product"?

        • "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."

          So if Linus stops distributing a little older version of the Linux kernel, some company could take a copy and start doing as they please with it? i.e. making a proprietary product of it. I think I may have to agree with the court on this one. Should we all feel free to install copies of Windows98 because Microsoft doesn't still offer it? Do we need some new definitio

      • by RealAlaskan (576404) on Tuesday November 30, 2004 @04:09PM (#10956603) Homepage Journal
        Just because something is no longer for sale to the public DOES NOT mean the copyright should no longer apply, thus taking control away from the owner/creator.

        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.

        • The deal is still made, the Gov't made the deal with the people to protect copyright.

          Now this means that a company can choose to withhold a product from distribution and there are valid reasons to do this. For instance, Microsoft wants people to buy their latest version of software so thats why they may elect not to distribute previous versions, especially as the previous versions may not be cost effective to support.

        • Let me make the distinction between "Our constitution gives Congress the right .." (the law itself), and "to serve the public interest" (the effect the law has).

          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

      • by hibiki_r (649814)

        This is an awful argument. Just because something is no longer for sale to the public DOES NOT mean the copyright should no longer apply, thus taking control away from the owner/creator.

        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

    • Don't worry...you will be sued by...hmm who is there to sue you if the product has been abandaned? Well other then SCO that is...
  • Google's cache next? (Score:5, Interesting)

    by Anonymous Coward on Tuesday November 30, 2004 @03:54PM (#10956425)
    In regard to copyrights what Google's cache is very similar. So is the Google cache next on the hit list?
  • Creative Commons (Score:2, Interesting)

    by echocharlie (715022)
    Has any big company ever used a Creative Commons [creativecommons.org] license? Or even a non-"all rights reserved" copyright?
  • Hello 2004! Reporting myfinded something in Google Temporality cachecopy of Slasharticle [slashdot.org] in question.

    "The decision is available. As we noted in an earlier story, the Eldred case attacked the length of copyright expansion, this one attacked the breadth, and so far, this one is as big a victory for freedom as the Eldred case was. Stanford has an overview of the case."

    Those who control the past, control the future; those who control the future, control the present; those who control the present, control th

    • On thanksgiving me and my family enjoyed watching a bunch of old films for the Prelinger archives. [archive.org] Most of the movies were produced by some industry group, but of course after 50 years these have no value anymore.

      Disney of course can still make money, and on principle, a can support them being able to get extensions, but it is stupid to not allow abandoned works to be free.

  • by stretch0611 (603238) on Tuesday November 30, 2004 @03:56PM (#10956456) Journal
    Its ironic that the company that probably benefits the most (Disney) from the copyright extension owes it existence to the lack of long copyrights 50 years ago. Lots of the older "Disney Classics" were based on books with expired copyrights. Disney never would have been able to remake Cinderella if the book they adapted it from had a copyright as long the laws allow today.
    • by Anonymous Coward
      You probably mean Peter Pan or Bambi. The Cinderella story was probably made famous by Grimm in the 1800's, but has origins as far back as the 9th century. Bambi was published in 1923, so when disney made it, I think it was public domain. Peter Pan was published in 1902. If the current copyright laws were in place when disney was making Peter Pan and Bambi into movies (1953 and 1942 respectively) they could NOT have made them without paying royalties.
      • by dvdeug (5033)
        Bambi was published in 1923, so when disney made it, I think it was public domain.

        No. Bambi was under copyright when Disney made the movie based off it, and still is. There was a court case between Disney and the copyright holders for Bambi a few years back where Disney claimed that the copyholders lost the copyright. While the URAA would have returned copyright to Bambi even if it had been lost, the (Ninth Districts?) decision implies that some books that were printed _before_ 1923 are still in copyright
      • by westlake (615356) on Tuesday November 30, 2004 @06:41PM (#10958327)
        Barrie assigned the rights to Peter Pan to the Great Ormond Street Hospital Children's Charity in 1929. Peter Pan will remain forever under copyright in the UK, under special legislation passed in 1988. Under the revised rules, European copyright expires in 2007, US coyright in 2023. Peter Pan Copyright [gosh.org]

        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]

  • And if not there, then in congress.

    But somewhere deep down in my brain, I know that there are no political solutions. We should just find a technical solution, and be done with it.
    • an army of android warriors fighting for the free exchange of data by exterminating huma-- err n/m
    • I know that there are no political solutions

      There are ways to get congress to act. But it is totally impossible to get enough commitment from the IT community. If there were a voluntary national IT strike until the copyright and software patent laws were overhauled. But you could never get enough IT people to do it. And if you could, you would still not get the H1B visa slaves to commit.

    • Ok, here's an idea (Score:3, Insightful)

      by krysith (648105)
      Well, I don't know if this is "technical", but here's an idea:

      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
  • by danheskett (178529) <danheskett@NoSPAm.gmail.com> on Tuesday November 30, 2004 @03:58PM (#10956479)
    One of the things that is happening in this country is that people - especially with issues outside of the sight of the mainstream - are taking their pet causes to the courts for problem solving.

    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.

    • thank god the founding fathers had a "pet" cause ... keep up the good work you "causers"
    • I think you are right.

      We need to identify a couple of congressdroids and start "lobbying" them. Having looked through OpenSecrets, it is amazing how cheap most of these guys go for. We all ought to be able to collectively scrape up enough spare change for at least 2 or 3 of them.

      If we could just get them to slip it in as a rider on some big noisy and unrelated bill. We should target something ridiculously popular, like the anti-gay marriage brigade or the anti-flag burning bozos. Tag a secret little

      • If we could just get them to slip it in as a rider on some big noisy and unrelated bill. We should target something ridiculously popular, like the anti-gay marriage brigade or the anti-flag burning bozos. Tag a secret little rider for copyright reform onto one of their bills and we could turn a bad thing into a good one.

        I think that's a deplorable idea--it combines undermining open political process with tolerance for repugnant social policies.

        I'm an ardent supporter of copyright reform. I'm also a

    • by bluGill (862) on Tuesday November 30, 2004 @04:16PM (#10956697)

      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.

      • Last night the wife and I watched "Mr. Smith Goes to Washington". It was fascinating to see that corporate interests controlling our legislators was something that people were concerned about 70 years ago. Nothing has changed. Those with the money and influence will attempt to control the rest. The constitution is one of our real protections against this. So it's no surprise that the courts are being used to combat a legislature that passes laws contrary to the will of the people.
    • by Jeffrey Baker (6191) on Tuesday November 30, 2004 @04:22PM (#10956745)
      Lessig himself admitted in a lengthy self-flagellation [legalaffairs.org] that he blew it during the Supreme Court arguments. The court wanted to side with Eldred, but they were looking for a case based on economic harm whereas Lessig insisted on giving them an argument based on the limitation of Congressional powers.

      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.

    • I believe they were illegal. The only reason we even can have IP laws is the constution allows it. However it doesn't ust say "And congrass can pass whatever law it likes in relation to IP. It says "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 relivant restrictions here are:

      1) "To promote the Progress of Science and useful Arts". The reason for copyright to exist is to promot
    • If you feel that change needs to be made through legislation, you should check out IPac [ipaction.org], a PAC supporting candidates that support a return to balance.
    • No, we don't. (Score:4, Insightful)

      by DarkBlackFox (643814) on Tuesday November 30, 2004 @04:59PM (#10957191)
      The United States government is divided into three branches in a system known as checks and balances. It most definitely IS the job of the courts to keep Congress in line. The courts are the only way to declare any legislation unconstitutional, and get bills/laws overturned, provided enough proof is presented. Googling for "US government checks and balances" produced a site [cyberlearning-world.com] featuring a lesson plan describing the system, and how it should work. The section labeled "The Judicial Branch" describes what the main function of the courts actually is (in a hypothetical situation, but insert any bill and it still works), outside of settling various corporate disputes and injury lawsuits.

      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).

    • by amper (33785) *
      It is generally accepted by most reasonable legal scholars that one of the most glaring omissions of the Constitution is an effective limitation of the power of Congress to pass unreasonable legislation.

      Especially as the Constitution has been Amended to remove most of the barriers between the Legislative and Executive Branches (by means of popular election of Senators, the "running mate" concept, etc), Congress today functions much more like a "tyranny of the masses" than the Framers ever intended.

      This is
  • by apenzott (821513) on Tuesday November 30, 2004 @03:59PM (#10956495)
    Since our (United States) congress is so out of control in this realm, the only way to stop this nonsense is with a constitutional amendment declaring explicit copyright terms and terms for revocation.

    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)

    by elhondo (545224) on Tuesday November 30, 2004 @04:02PM (#10956529)
    For an article on how to join a PAC that is concerned with fighting this sort of thing. http://www.wired.com/news/politics/0,1283,65651,00 .html?tw=wn_tophead_1 [wired.com]
  • Unfair! (Score:2, Funny)

    by switcha (551514)
    The ruling has implications for abandonware and other copyright-eligible materials that have no active owner.

    Hey, most guys who write software aren't very active. Why should geeks be forced onto treadmills to keep their copyrights?

  • by vudufixit (581911) on Tuesday November 30, 2004 @04:05PM (#10956562)
    Then who's around to actually pipe up and complain about "their" material being made available online?
  • IANAL... (Score:5, Interesting)

    by nebaz (453974) on Tuesday November 30, 2004 @04:06PM (#10956572)
    but I looked over the ruling, and it said basically on all counts that the case was "dismissed with prejudice". Some of the rebuttals were of the form

    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?

    • by Alaren (682568)

      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

    • IANAL either but IMHO "dismissed with prejudice" doesn't mean unappealable. Rather, "dismissed without prejudice" means that you can bring the same case again (presumably with new evidence or better arguments) *without* appealing the decision.

      AIUI, there are some intermediate procedural rulings that can't be appealed, but any final decision can be appealed except for:

      1) A decision by the Supreme Court (that's why we're absolutely screwed on Eldred vs Ashcroft)

      2) A decision that the Supreme Court expressl
      • Re:IANAL... (Score:3, Informative)

        by sampson7 (536545)
        Contrary to the subject line, IAAL -- but not a particularly good one, so don't take any of what I say to court or anything.

        (Ha! Get it? "Take it to court"? Gotta love a little lawyer humor!)

        Actually, dismissed with prejudice is merely a term of art. It means that the court has ruled on the merits of the argument and will not (generally) entertain any further arguments on the matter.

        Usually, if a case is dismissed without prejudice, it means that there was a procedural or jurisdictional defect
  • Congress... (Score:5, Interesting)

    by Thunderstruck (210399) on Tuesday November 30, 2004 @04:07PM (#10956576)
    Congress, the cause, and solution, to our copyright woes...

    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?

  • by JohnnyX (11429) on Tuesday November 30, 2004 @04:07PM (#10956582) Homepage Journal
    Intellectual property, e.g. copyright, is a legal fiction along the same lines as "corporate personhood". The mistake it appears the courts and the legislature are making is to imbue intellectual property with the same sanctity as actual physical property.

    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]...
    • Intellectual property, e.g. copyright, is a legal fiction along the same lines as "corporate personhood". The mistake it appears the courts and the legislature are making is to imbue intellectual property with the same sanctity as actual physical property.

      Your statement is quite true. Both corporations and "intellectual property" (ie. copyrights, trademarks and patents) are more than legal fictions, however; they exist as sanctions from the State.

      You have to apply to the government for incorporation, an

  • Software abandons you!
  • As a long-time consumer of abandonware, this is horrible news. If the product is not available for sale, I would aruge that common sense dictates that the public sharing of the product hurts nobody as the copyright is not being actively protected! The persecution of Abandonware when the programme is still available for purchase as part of a 'legacy' series is understandable, but otherwise it is rediculous.

    Besides, the ability to play the games that I once oggled over in PC Gamber but couldn't afford is rea
    • by Oori (827315)
      I agree that abandonware should be archived and publiclly shared. Here's a prime example: Alta-Vista Personal search engine, which was developed in 1997, and worked on win89 and win2000 flawlessly (until a win2K bug forced me to index manually) -- it was pretty quick, and did a better job than google's current desktop search. It also didn't run constantly in the background, but updated it's index at preset times.
      Finding altavista personal search is almost impossible now (and it won't run on XP), but i
  • by the pickle (261584) on Tuesday November 30, 2004 @04:55PM (#10957152) Homepage
    ...to mention the Abandonware Petition [mivox.com].

    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
  • by diamondsw (685967) on Tuesday November 30, 2004 @05:22PM (#10957459)
    Look, I want things to enter the public domain as much as the rest of you, but it looks like the copyright laws here made a decent amount of sense. Read the decision. Meanwhile, the lower courts are correctly noting that where the complaint directly conflicts with Eldred, they have to choice but to dismiss the complaint.

    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.

Never tell people how to do things. Tell them WHAT to do and they will surprise you with their ingenuity. -- Gen. George S. Patton, Jr.

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