Internet Archive Loses Copyright Fight 412
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.
I don't know what to say. (Score:4, Insightful)
Re:I don't know what to say. (Score:2, Insightful)
Relocate (Score:2, Insightful)
Abandonware is still copyright-eligible (Score:3, Insightful)
Abandonware, ahh.. (Score:5, Insightful)
Besides, the ability to play the games that I once oggled over in PC Gamber but couldn't afford is really quite something.
Damn that Mickey Mouse (Score:5, Insightful)
Re:Abandonware, ahh.. (Score:2, Insightful)
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.
Comment removed (Score:5, Insightful)
you gotta love it when ... (Score:1, Insightful)
americans sell out the country
and people sell out each other
Intellectual property is different (Score:5, Insightful)
Now I'm a Libertarian [lp.org] who works in an idea business, so I understand the utility of intellectual property, but it seems reasonable that the law should require an actual rights-holder to affirm their rights and/or create a process by which someone who wanted to republish abandoned intellectual property could give notice to the purported rights-holder. If there was not a negative response in say, 60 days, the person would get the rights to publish the work.
Just a thought.
Yours truly,
Mr. X
...killer Benihana shrimp [sarwark.org]...
Re:Abandonware, ahh.. (Score:5, Insightful)
Copyright isn't just about giving control to the copyright holder. It's a deal struck between authors and society. Authors agree to produce work for society, society agrees to give the author a fair chance at compensation for their work.
One could easily make the argument that when an author refuses to distribute their product, they aren't living up to their side of the deal.
Of course that's not how the law reads right now, but a simple majority can change that.
Re:Abandonware, ahh.. (Score:5, Insightful)
Sorry, wrong. That may be the way the law is currently interpreted, but that is clearly not the way the law should be interpreted.
What follows is U.S. specific: that's appropriate, since the decision is also.
Our constitution gives Congress the right to extend monopolies to artists, authors and inventors, for limited periods, to serve the public interest. The ultimate aim is to enhance the public domain. I'd say that allowing a copyright owner the ability to exercise dog-in-the-manger style control, by intent or by apathy, is clearly unconstitutional. If the courts disagree, they're following in the grand old tradition of Dred Scott [wustl.edu]. The courts have been wrong before.
The copyright is not dependent upon the owners ability/desire to distribute it.
That is probably true, but if so, it is an accident of law, not The Way God Commanded It.
Copyright is not a natural right like your right to not be murdered. Copyright is a deal we make with authors, because we think we're better off for it. If we aren't better off, if the authors aren't holding up their end of the deal, we have right to change things around. Copyright should be called copyprivilage.
Re:Abandonware is still copyright-eligible (Score:4, Insightful)
Very simply, copyright deals with whether the material is owned, not with whether it is distributed or not.
The car in my garage that I haven't driven in 10 years is still mine, and you can't take it just because you need a car and I'm not using it.
I have the legal right not drive my car, and I have the legal right not to distribute my software. My availing myself of these rights does not in any way confer rights to my things upon you.
Thus, you cannot distribute my copyright protected material over the internet, even though I am not doing so myself.
KFG
Re:Abandonware, ahh.. (Score:3, Insightful)
The key there is the should. I'm pretty sure that the law as it is worded makes abandonware as illegal as copying current software. However, it is argueable that the original intent of copyright law is to encourage the creation of new intellectual works for the enrichment os society. Under that interpretation, it becomes pretty hard to prove that protecting abandondonware under the current copyright law barely helps the creator in any way, while at the same time doesn't help society in any way.
Most of the time, whenever the owner of the rights is found, websites are given permission to distribute the program for free. The problem is that in most cases, figuring out who is the copyright owner is almost impossible, leaving the status of the program in limbo.
Re:Disney's business plan. (Score:3, Insightful)
1) Find a classic story with expired copyrights.
2) Whitewash it until it can't offend anyone.
3) Use its mass media engine to make it ubiquitous, similar to how Microsoft sole Windows 98.
4) Copyright their neutered version of the public domain work, and pay the government to keep it copyrighted in perpetuity.
It's reminiscent of how many humans take all their nourishment from their environment, yet take every measure, from coffins to embalming, to prevent giving back to it when they die.
Re:We have to face it... (Score:2, Insightful)
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 rider for copyright reform onto one of their bills and we could turn a bad thing into a good one.
Obligatory copyright infringement != theft comment (Score:2, Insightful)
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.
Re:We have to face it... (Score:5, Insightful)
Anyway your argument is not at all persuasive. The Constitution clearly limits Congressional power of copyright and patent, and it even employes the word "limited" and gives a perfectly valid reason:
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries
There ya go. Copyrights must be "limited" and they must "promote the progress of science and arts" whereas the Sonny Bono act satisfies neither.
Re:Congress... (Score:1, Insightful)
"Instead it's time to lobby the Legislative Branch to change it!"
You know what the Legislative Branch hears? Overwhelming voices of support for the status quo. They hear, "We The People, are resolutely in support of your position, and demand More Of The Same".
A feeble, meaningless voice to the contrary is ignored.
We had a chance to change the goddamned world, and we blew it.
Re:Abandonware, ahh.. (Score:2, Insightful)
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.
What about this scenario? (Score:5, Insightful)
My company collapses thus the software is no longer sold or supported.
1 year later I create a new company and I want to sell my software again.
Re:Abandonware, ahh.. (Score:4, Insightful)
One could easily make the argument that when an author refuses to distribute their product, they aren't living up to their side of the deal.
Congress and the courts have explicitly recognized a right to not publish, or publish on their own terms. Copyright is a grant of a limited monopoly, and simply because I'm not publishing a work right now doesn't mean that I'll never do it. The worst case is that you (the public) get to do what you will with it when the copyright expires; the deal is that you get to see it when the copyright expires, not when I don't quote you a price.
Note that this is if the copyright holder can be identified. If I write a crap program and never distribute it because it was a throwaway hack, I'm perfectly within my rights to do so. That doesn't give someone the right to beg, borrow or steal a copy and distribute it, just because I'm not doing it.
For example, I might deem that the creation is so horrible (since I didn't put hard work into it) that if I were to release it, it would harm my reputation as a programmer (or writer, filmmaker, etc). Thus I have the right to keep a lid on it as long as I want. Who knows ... in the future I may decide that it's a cute work representing inexperienced naivete that the world should see and laugh at. Just not yet.
-jdm
Comment removed (Score:3, Insightful)
Ok, here's an idea (Score:3, Insightful)
A copyright Goodwill, or Salvation Army.
Let's say we call it the "Public Domain Foundation" or somesuch. When people are done with their intellectual property, and have squeezed every last dollar from "Doom 2, Electric Boogaloo", they can donate it to the PDF and get some tax writeoff. Just like people donate their old sneakers to Goodwill. Then the PDF declares the IP to be public domain.
Just like with the used goods charities, not everyone will donate their used stuff. A lot of people throw out their old clothes. But an awful lot do donate. Given a little PR campaign about "Recycle and reuse, get a tax break", I think a fair number of old works would be donated by publishing houses and other IP holders. Maybe the practice of donating older works to the Public Domain might catch on, and become a standard practice in industries...?
Ok, so its not as good as reducing copyright terms, but if the law is going to treat copyrights as property which effectively last forever (I'd love a car which lasts 70 years past its builder's death), we ought to play by the rules on the field. It's better than letting the copyrights go into the limbo they currently go into when their users are done with them.
No, we don't. (Score:4, Insightful)
From the site:
The Judicial Branch
The Congress is considering a bill that will make criticism of the President on the Internet's World Wide Web illegal. If the bill is approved by Congress and approved by the President, the Supreme Court must be ready to hear arguments in favor and against the bill. The Supreme Court must be ready to ask the Congress questions about the bill in order to learn facts that will lead to a decision in a lawsuit brought by the Press against the bill. The Supreme Court must develop five to seven questions it can ask lawyers on both sides. The Supreme Court will also have to vote on the constitutionality of the bill. Those in favor (there must be a minority of students taking this position even if they disagree with it) and those opposed to the bill must write a "majority" and "minority" opinion in the case.
This is a lesson plan aimed at students, so the five to seven questions thing can be ommitted, but the idea is clear- the supreme court IS HOW TO REGULATE CONGRESS. It's how the government was designed, and the most effective way to combat purchased politicians. I'd hope it's more difficult to lobby a judge (who would be appointed- no need for campaign money), than the local congressbeing (who IS elected, and has massive financial support for campaigning).
Darth Vader is on-topic (Score:5, Insightful)
That's a very interesting theory. The REALITY is that our dear Congress keeps saying "I am altering the deal. Pray I don't alter it any further" every few years.
Ever since the Bono Act, we are living in an age of perpetual copyright. I do not expect any current copyright to expire in my lifetime. It's far less likely to happen than Social Security being solvent in 2040.Here's the deal! (Score:5, Insightful)
*Perhaps* this is because *that's the deal* that *your band* *agreed to* when *you* *signed* the *contract*. It's *the price* for a *chance* at *major label* fame and *fortune*!
Re:Google's cache next? (Score:3, Insightful)
And I get modded down by some idiot. I mean, if I'm wrong about this, somebody tell me, throw me a frickin' bone here, instead of dropping a -1, Overrated on me.
Re: The law, and who should fix it (Score:3, Insightful)
I'd say that allowing a copyright owner the ability to exercise dog-in-the-manger style control, by intent or by apathy, is clearly unconstitutional.
With above distinction, your view reads to me as: "because the law doesn't have the intended effect, it should be declared unconstitutional". Newsflash: this happens all the time, and laws aren't unconstitutional because of it. I read court decisions like this as saying: "Yes, maybe the law doesn't have its intended effect, but we don't deal with that. We only deal with (whether Congress has the right to put that law in place). We (the court) decide that Congress has that right".
A pity, but I can accept that. It just means that Congress/lawmaking is the place to fix this, not the courts.
For a suggestion, I quote from the Stanford article: "For the first 186 years of our Republic, copyright laws established an "opt-in" system, one in which copyrights were secured only to those who took steps to claim them. In 1976 and 1989, Congress inverted this regime, transforming copyright law into an "opt-out" system, one in which rights are granted automatically and indiscriminately unless disclaimed." (anyone know an important reason why this change was made?). Me thinks it would really serve the public to revert that change, back to an opt-in policy, where authors have to take active steps to secure copyrights. That would solve the orphaned-works problem in an instant.
Too bad, the copyright-profit industry clearly has better lobbyist teams working the Congress than the public has.
Re:Abandonware is still copyright-eligible (Score:2, Insightful)
That seems to be the way the playing field is being set, but that is not the way it should be. Development, invention, and creativity are all socially beneficial.
If our system of laws is for the social good, then, as someone else pointed out, abandoned intellectual property should be treated the same as abandoned physical property, and brought back into usefulness (i.e. public domain). If you die without heirs, your house will be sold and the proceeds go to the community, and someone else can enjoy the use of the property, rather than allowing it to remain abandoned and decaying.
Once an idea exists, it should not be quashed and suppressed just because someone can't make a buck off of it (or enough bucks to be willing to bother).
It is simply absurd to require everything to meet some standard of monetization in order to be deemed worthy.
Re:What about this scenario? (Score:5, Insightful)
If your company owned the copyright, and that company ceases to exist, then now that copyright is in limbo - which is exactly what this lawsuit is trying to address.
If you owned the copyright and not the company, then nothing has happened to the copyright and you can sell your wares as before under any new arrangement.
Even if company goes bankrupt, its IP (copyright) can be sold off and the new buyer would own the copyright.
So your scenario is already covered. It makes no sense to protect abandoned copyrights. It makes about as much sense as protecting abandoned cars on the highway.
Re:What about this scenario? (Score:2, Insightful)
Re:Abandonware is still copyright-eligible (Score:1, Insightful)
Ummm... you've got it backwards. If you publicly distribute something, its natural status is in the public domain, and that's how civilization worked for millenia. Starting a few hundred years ago, certain parties persuaded the state to take those things out of the public domain by force. Recently, this state-sponsored power has been radically expanded.
Re:Obligatory copyright infringement != theft comm (Score:3, Insightful)
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 the time to copy them.
A few years later, a company was approached by the fans of this series, asking them to purchase the rights to distribute it in America. The company declined at first, citing the fact that since the fansubs of the anime were so prevalent, no one would have any reason to buy them. Eventually, in this case, a happy ending came about when the fans pre-ordered enough copies to make it finiacially viable to actually do the project.
However, just because this one ended in a happy note, does'nt meant they all do. The fact of the matter is, most of the time fansubers, abandonware sites, and other gray area copyright violators who aren't stealing out of a desire to not pay but out of a lack of any other avenue to get the product, end up hurting themselves in the end.
Typically what happens is that instead of reviving the product, they hammer the last nail into the coffin by removing ANY hope of the company seeing any finiacial viablity out of bringing the product back on their own.
On the other hand, damn it sure would be nice if companies couldn't horde these things as long as they do now.
ask yourself, why does property exist? (Score:1, Insightful)
property necessarily exists because of scarcity of resources. unless this is the matrix, at any given time there's only so much accessible gold, so much corn, so many AMD athlon CPUs, etc.
price (systems) are determined by the intersubjective valuation of those scarce objects over time (across the time domain).
according to libertarian / austrian economic thought, markets represent a real-time distributed (scale-free) evolving algorithm for optimizing where scarce goods need to be and who uses them. property allows for decisive dictatorship of the individual to perform localized processing.
problems are created when governments, representing a monopoly of force, distort markets with these "legal fictions" -- copyright, patents, incorporation (actually government sub-charters, like dukedoms or somesuch).
of particular problem is this farce of "intellectual property". ideas, software, intangibles which are not inherently scarce and have virtually no transaction cost of reproduction, really cannot be property. it's like making property out of air when there is no economy (scarcity) for it. (perhaps on a spaceship...)
remember, government recognition of property is, according to thomas jefferson, "a gift of social law". inherently, deep anarchy reigns supreme.
so simply put, ideas, software, "know how", sounds and sights -- INFORMATION -- does not satisfy the requirements of the NEED for property. copyright and patents are distortions of CONTROL and entail all of the problems of communist central planning.
Re:government is funded by business (Score:2, Insightful)
Bullshit.
They'll pay for the lawyers that will protect *their* interests, but they won't lift a finger otherwise.
In fact, it's quite possible that the lawyers they pay will attack the *artist*.
Re:Disney's business plan. (Score:3, Insightful)
Re:Here's the deal! (Score:4, Insightful)
Or perhaps it's the tithe you have to pay to a bunch of goons who have monopolized US music distribution?
Somebody would be an idiot for signing a contract like that IN A FREE MARKET, but we have no such thing. Hell, an independent band even has to pay an RIAA tax on the the blank media they use to record.
The problem isn't this guy, it's that a criminal [musiccdsettlement.com] organization has managed to buy off politicians to the point where they even make money off blank tapes they neither manufactured nor distributed. You have to pay them for NOTHING, how fucked up is that?
Re:Creative Commons (Score:1, Insightful)
Helpful Short Answer:
Wizards of the Coast.
Dungeons and Dragons, Third Edition.
Open Gaming License.
--AC
Re:Disney's business plan. (Score:5, Insightful)
You see, once upon a time, the idea of "intellectual property" and "copyright", would've been laughed at. I mean, when I tell you a story, I still have the story, right? Languages and numbers only become more useful with each new person who learns them. However, all knowledge is power, and many people preferred to keep that power to themselves. A fine example is the Masons, who prospered for for many years due to secret stoneworking techniques and still have a reputation for secrecy to this day.
As a way to encourage the sharing of ideas and works of art, the idea of copyright was conceived.
The purpose of copyright is to encourage artists to share their works with the public by allowing them exclusive publishing rights for a limited time, after which those works would enter the public domain.
Would Disney have been able to create Snow White, Sleeping Beauty, The Little Mermaid, etc, if the inspirations for those works had not been in the public domain? Of course not, and Disney's success is one of the best arguments for the necessity of allowing works of art to pass into the public domain. Yet Mickey Mouse (and literally thousands of other works of art, published since 1928, the first appearance of Steamboat Willy) has not passed into the public domain, as would be proper. Instead, every time that mouse comes close to becoming public property, Disney lobbyists donate money to purchase another copyright extension, and more and more works that should belong to society as a whole are dragged along with Steamboat Willy.)
The public has been denied the compensation it deserves for allowing Disney the copyright in the first place, and it seems that will continue to be the case, until a sufficient number of people wake up to what we are losing in exchange for Disney's success.
Copyright (Score:2, Insightful)
Reasons:
1) Given the pace of modern change, it's a lot easier and faster to capitalise on an idea or product. In one month, you can have prototypes built for you and be marketing to the entire planet.
2) Kids. There's really no reason for kids of inventors/authors to benefit from super-long copyrights. If my Dad makes a pile of money from an invention or work, I'll inherit that. If he wants me to take over the business, he'll train me. I shouldn't feel entitled to a life on easy street just because an ancestor of mine was smart or lucky.
3) Cross-collaboration. Getting new inventions, methods or processes out into the wider community where they can be combined with existing ideas is of huge benefit to a modern economy. A thousand years ago, it didn't matter too much if a new castle design or plough was delayed ten years, because it would take a century or so to get to a significant fraction of the planet. Today, if you delay a year, you've lost the advantage.
I've tinkered with assorted copyright length schemes, mainly with either brutally short expiry times, or geometrically increasing extension costs (for companies which just HAVE to have one more year of owning Mickey Mouse). The major problem is that eventually it becomes cheaper for a large corporation to buy a change in the copyright law than it does to pay for another year of copyright.
Maybe if laws-for-cash was legalized and formalised somehow? Rent-a-law?
One person's "abandonware" is not another's... (Score:2, Insightful)
It's no longer available in its native form, and many of the companies involved no longer exist.
Under "abandonware" thinking, those programs should be free to distribute.
However, thanks to the recent retrogaming craze, a lot of company's successors are seeing a good revenue stream from those once "abandoned" titles. (For example, who ever thought we'd see Atari 2600 titles for sale again, but there they are, built into a joystick at Toys R Us.)
As far as "old movies of little value," certainly there are those who think "It's A Wonderful Life" should still be Public Domain; the current copyright holders would disagree vehemently.
Software never wears out (Score:4, Insightful)
One unique property that software, fiction, nonfiction, and other creative works have is that they *NEVER WEAR OUT*. Thus, old creations are direct economic competetiors to recent creations. Thus, the cheap availability of old creations in the public domain would affect and depress the market of recent creations. The copyright feudalists have done their best to keep this from happening by keeping old creations far away from the public.
Thus, copying old artistic works/abandonware could be detrimental to current creation. For instance, if copyright law was 42 years, most black&white film archives would be out of copyright --- I'd expect a lot of reruns of those instead of recent creations on TV.
Unfortunately, keeping old creations far from the public and rotting away is also destroying our cultural largess to our descendents. Under the current law, our cultural heritage will be lost. How many 80's arcade games are already lost forever? How many would have been lost forever by now without MAME?
To me, the preservation of our culture for the future is more important than an argument that the professional creation of modern cultural works would suffer a minor economic decline. Personally, I think the availability of more culture in the public domain would lead to a bit less professional creativity, but VASTLY more total creativity.
Re:But if it's abandonware.... (Score:2, Insightful)
But seriously, this could end up being an argument for strengthening the government's power in persuing and prosecuting those responsible for infringement. Nobody else can prosecute offenders, so the government must step in. Even if the works have been long abandonded...
Indeed! (Score:1, Insightful)
What is "little or no commercial value"? (Score:2, Insightful)
The copyright holder wants to keep their copyrights and possibility to gain financially until their copyright on the material pass on.
The information-wants-to-be-free-activists; All information should be accessible, no matter what.
I believe that it's natural that the copyright holder defend their rights, and they should be able to decide when or if their material should be shared by anyone without their control.
Though I also believe that these copyright-holders should perhaps loosen up when it comes to defending their copyright when it comes to material that is more trivial and of common interest, and where-of this material doesn't bring them financial gain. Some "good will" would be suitable.
Re:Software never wears out (Score:2, Insightful)
After all, it's not as if new creations aren't competing against public domain ones now. The existence of Shakespeare in the public domain has not resulted in the predominance of Shakespearean plays, and no modern ones.
If a TV channel was to start showing too many old black and white films/shows at the expense of newer ones, I don't think they'd remain too competitive.
I think that there's room for both older, public domain works, and new creations. People like new things (and old things). And after all, if a new creation can't be competitive against an older one, perhaps they should try a bit harder. :)
Re:We have to face it... (Score:3, Insightful)
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 exactly why the concept of "judicial review" has been one of the most important legal ideas ever introduced since the Constitution. Of course, a better way to institute judicial review would be to Amend the Constitution, rather than have a precedent set by what would today be termed "activist judges" by those opposed to the idea.
But we all need to realize that judicial review *is* needed, and I don't see those calling judges "activist" complaining about those "activist judges" out when the decisions go in their favor...
The point is, the courts *can* and *should* be used to stop legislation that should never have been passed in the first place. It would be better no to have passed the law, but when it does pass, the people need a remedy other than the Branch which passed the damned thing in the first place.