Internet Archive Loses Copyright Fight

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.

Check out Wired

[elhondo]

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]

Re:Abandonware is still copyright-eligible

[archipunk]

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.

Re:Abandonware is still copyright-eligible

[mopslik]

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.

Re:Abandonware is still copyright-eligible

[Pxtl]

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 site like WipeOut XL, and its a site that industry bigwigs know about, and are still chugging along fine.

Re:Abandonware is still copyright-eligible

[AndroidCat]

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.)

Re:Damn that Mickey Mouse

[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.

Re:right, now EVERYONE do your part

[ScooterBill]

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.

Re:This just kills me.

[91degrees]

"3) Congress carefully considers the meaning of "promotes the progress of arts and science" every time they extend this"

This is the worst one. Congress does no such thing.

Well perhaps, perhaps not. But it's not up to the court to speculate on whether the law does "promotes the progress of arts and science". They could only overrule it on this grounds, if it was quite clear that the obvious result of this extension was detrimental to the progress of arts and science. While there is some evidence to support this position, it could be argued that longer copyright protection has encouraged some publishers to continue publishing their work for longer.

Personally, I think the arguments a load of hokum, but unless I can disprove this and any similar argument, then it has to accepted as the wisdom of congress.

Re:IANAL...

[sampson7]

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 in the case. The case is still dismissed, but you are free fix whatever procedural or jurisdictional problem and then re-file the case. If a case is dismissed without prejudice then the court has not ruled on the merits.

If you think about it in terms of judicial economy (a fancy term for not making judges do more work then absolutely necessary), this makes perfect sense -- the court does not want to have to listen to 10 people make the same argument. They heard the case, they deliberated, and they decided the merits of the case. They don't want to have to do all that work over again!

The one thing I'll add to the previous commenter is that the parties can apply to the Supreme Court for a writ of cert (basically the Supreme Court's permission to appeal to them) for either a decision on the merits (a dismissal with prejudice) or sometimes, even a case dismissed without prejudice on procedural or jurisdictional grounds. The specifics get a little complicated.

But the key to understand is you need a final decision in order to seek an appeal. Here -- first you'll have to seek en banc review from the full 9th Circuit -- then they can apply to the Supreme Court..... blah blah blah....

Re:Damn that Mickey Mouse

[dvdeug]

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 in the US, something generally held not to be true.

The Peter Pan Coyright

[westlake]

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]

Re:What about this scenario?

[cpt kangarooski]

I guess that you're not in the US. (or in fact, in just about any country I can think of)

Here, companies are perfectly able to own copyrights, both as authors under the work for hire doctrine currently codified in 17 USC 201 and 101, and through assignments from other authors as provided for in 17 USC 204.

In fact, I don't recall that it's ever been impossible for companies to own copyrights. The work for hire doctrine dates back over a century, and assignments to another who would then become the copyright proprietor were possible.

Licensure is also an option, as you note. But it's hardly the only one!

And of course, corporate ownership of copyrights is a totally pedestrian idea throughout the world. I can't think of any place that doesn't allow it altogether. Perhaps you know of one?

It would probably be a good idea for you to do some learnin' on this subject before you post about it again.

Re:What about this scenario?

[SeattleGameboy]

Wow... that is so wrong I don't even know where to start.

From FindLaw.com...

The CTEA extended the term of protection by 20 years for works copyrighted after January 1, 1923. Works copyrighted by individuals since 1978 got "life plus 70" rather than the existing "life plus 50". Works made by or for corporations (referred to as "works made for hire") got 95 years. Works copyrighted before 1978 were shielded for 95 years, regardless of how they were produced.

Any other thought that need to be straightened out?

Watch out where you relocate

[Anders Andersson]

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 whatever definition of "overbroad"), this is about challenging the constitutionality of recent changes to U.S. copyright law, changes that came about as a result of the United States acceeding to an international treaty, namely the Berne Convention.

Your operation handing out copies of old works still under copyright protection will be regulated by essentially the same copyright regime in any Berne Convention country where you choose to relocate. That's a little over 100 countries, probably most of the countries where you would want to relocate. If you want to put up a fight, make sure that you are fighting the right enemy (the Berne Convention, not the United States).

As for myself, I don't consider copyright by default to be much of a problem, but that's because Sweden acceeded to the Berne Convention even before I was born, and copyright by default is the general rule in Europe. It's the United States that is the latecomer in this respect.

Even if the challenge is successful on constitutional grounds, I doubt the United States could amend its copyright legislation to your liking and still be in compliance with the Berne Convention. As Kahle suggests, you would have to discriminate against your own citizens, requiring United States authors to register their works for copyright protection, while granting it automatically to foreign authors (or authors from other Berne Convention countries, to be precise). Would you accept that?

Even with automatic copyright protection, I think it should be up to the copyright holder to sue for infringement. Unfortunately, the Swedish supreme court found in one case [pdcs.org] that infringement had occurred even without a lawsuit from the proper copyright holder.