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Kahle v Ashcroft Appeal Filed 359

Posted by samzenpus
from the fight-the-power dept.
An anonymous reader writes "Brewster Kahle of the Internet Archive has announced that the appeal of Kahle vs. Ashcroft has been filed. Here is the appeal. Kahle vs. Ashcroft concerns the constitutionality of changing from an opt-in copyright system (which existed for almost 200 years in the US) to the current opt-out system, where every doodle on a piece of paper is copyrighted for 95 years. Yes, they used the word doodle in their appeal. Previous stories here, here, and here."
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Kahle v Ashcroft Appeal Filed

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  • Doodle? (Score:5, Funny)

    by Ghoser777 (113623) <fahrenba AT mac DOT com> on Monday January 24, 2005 @11:06PM (#11464205) Homepage
    Sounds like what the judges will be doing while they hear the case :(
  • by physicsphairy (720718) on Monday January 24, 2005 @11:09PM (#11464225) Homepage
    But I thought it was 70 years after the death of the author (as opposed to the cited 95) or is that just for literature?
    • by Kiryat Malachi (177258) on Monday January 24, 2005 @11:15PM (#11464283) Journal
      Individuals: Life of the author + 70 years ( 302(a))

      Joint Works: Life of the last surviving author + 70 years ( 302(b))

      Anonymous Works, Pseudonymous Works (where identity is not revealed) and Works Made for Hire: 95 years from publication or 120 years from creation, whichever expires first ( 302(c))

      Anonymous or Pseudonymous Works (where identity is revealed by filing): Life of the author + 70 years or life of the last surviving author +70 years ( 302(c))

      Taken from here. [ttu.edu]
      • by Anonymous Coward on Monday January 24, 2005 @11:27PM (#11464377)
        Taken from a 1999 page, good idea.

        Laura's always been the go to gal on this one...

        WHEN U.S. WORKS PASS INTO THE PUBLIC DOMAIN [unc.edu]

        anon cause i think i've whored this link b4..
        • by Kiryat Malachi (177258) on Monday January 24, 2005 @11:49PM (#11464514) Journal
          A 1999 page is completely accurate when it comes to copyright *duration*, as terms have not been altered since 1998.

          In fact, mine has significantly more (correct, for the record) detail regarding anonymously created works. In addition, Lolly is incorrect - works published between 1951 and 1977 all receive the 28+67 extension, not 64-77 as she claims.

          It's all in here [copyright.gov]. Which, if you had read it recently, you would know has not been amended since the Bono Act in 1998.
          • however. there's a better metric for describing copyright duration: pre-MICKEY MOUSE creation: public domain. post-MICKEY MOUSE creation: copyrighted for eternity.

            if they keep altering it the way they've done so far.
      • by AstroDrabb (534369) on Monday January 24, 2005 @11:43PM (#11464480)
        While I know what you say is true, _every_ time I read it I can't help but want to vomit. I personally cannot belive that the "representitives" of the US population has been totaly bought off that every copyright is not life+70. I never new that a copyright owner could benefit from a copyright for 70 years after his/her death. How can anyone benefit from something for 70 years after their death? Copyright wasn't create to give copyright owners the power to give their children and their grand-children such benefits. The only person that should benefit from a copyright is the original copyright owner, and IMO, that benefit should not last more than 10 years.

        Since when can the dead benefit from finacial gain? Heck, since when should someone have exlusive rights to work they release to the _public_ for their entire life? We live in sad, sad times. I would love to see copyright and patents drop down to 10 years or so. While I don't agree with software patents, I would have a _lot_ less to complain about if software patents dropped to 5 years or so.

        Sadly, we will never see these days since our _whole_ government (both republican and democrat) are pretty much paid for by big business or special interest goups.

        • by PyroMosh (287149) on Tuesday January 25, 2005 @12:19AM (#11464723) Homepage
          It could be lowered back down again to life of the author + 50 years, but would be inpractical to lower it further.

          The reason for this is the Berne Convention [wikipedia.org], which states that all signed parties had to provide at least a minimum of lifetime + 50. Any nation can provide more but not less.

          The U.S. would not only have to pass legislation to change it. But they would have to back out of the Berne convention. Backing out of the Berne convention would (I think) have the side effect of getting the plantifs what they want, and returning the U.S. to an opt-in copyright system.

          IANAL, so I very well may be wrong about that, but even if I am, it would at least remove one major hurdle to getting the U.S. back to an opt-in system.
          • Actually, as I understand it the AUSFTA won't allow you to reduce the copyright levels below what Australia's 'upgraded' ours to, which are now the same as yours. Life+70's where it's at, unless Kahle wins. Personally, I'm barracking for him, but I have a habit of liking the loser.

            But in the case of the Berne Convention, you're slightly wrong, as I understand it. You have to respect life+50 for other countries', but you can have your own lower limit for your own country's copyrights. This proviso was put i
        • This may be a little farfetched but I could imagine the one of the intents for Life + 70 years is to prevent someone from killing the author in order that their works would pass on to the public domain immediately. Now that being said, I agree with you completely on all counts... it *is* rediculous. It should be a set number of years from the moment of creation; then there is no doubt as to when a work will become public domain, and for the most part it will only benefit the author.

          One of the big problems

    • No, all works produced in the USA are eligible for perpetual copyright on the installment plan [wikipedia.org].

      As long as Mickey Mouse is in "danger" of falling into the public domain, you can bet the copyright term will be extended.

  • You mean... (Score:5, Funny)

    by Frogbert (589961) <[frogbert] [at] [gmail.com]> on Monday January 24, 2005 @11:10PM (#11464232)
    You mean this comment is my own property for 95 years just because I wrote it...

    Stay back fools and don't quote me. You'd better believe I'll protect my rights!
    • Re:You mean... (Score:3, Insightful)

      by sepluv (641107)
      Aah, but you're just an individual and don't have enough money to buy^Wpersuade judges and politicians, so it is different.
      • Aah, but you're just an individual and don't have enough money to buy^Wpersuade judges and politicians, so it is different.

        Right, so if you live another 25 years, it is still 95 years. After all since you are just an individual, your copyright term is different: Life + 70. Sounds like a prison sentence doesn't it?
        • by sepluv (641107)
          You copied my comment (and I am really Bill Gates).

          All your base are belong...

          • You copied my comment....

            Fair enough, but I suspect that you will have a hard time convincing a court that quoting one sentence in order to answer a point is anything other than fair use... IANAL, though....
    • Re:You mean... (Score:5, Informative)

      by Leo McGarry (843676) on Monday January 24, 2005 @11:35PM (#11464431)
      Your comment was fucking hilarious. Mind if I use it as a springboard to make a point?

      Copyright --which, just so we're all on the same page, is the legal recognition of natural property rights --does not prohibit quotation. To the contrary, the law specifically states that quoting a work for the purposes of commenting on it is not a violation of the work's creator's property rights.

      That seems to be a point on which ever so many people have been misled. I figure it couldn't hurt to be explicitly clear about it.
      • Re:You mean... (Score:4, Interesting)

        by DeepHurtn! (773713) on Monday January 24, 2005 @11:46PM (#11464500)
        The problem usually comes from vague definitions -- what exactly constitutes a significant portion of a work, for example? This ambiguity has real repurcussions. For example, scholarly articles and research in popular music are often unable to quote the lyrics of the songs under examination, even though one would think that would fall under comment and criticism.
      • And yet (Score:3, Insightful)

        When you use modern technology to do the exact same thing as quotation, there is no protection for the action. That's a key place where modern copyright law has gone wrong, IMHO. If I copy a paragraph from a book and quote it in another book, nobody sweats it (in fact, it's expected). But if I quote a piece of a beat from a song in another song, or a segment of film or TV in a video art piece, I'm expected to get the permission of the copyright owner (and often to pay lots of $$$, if they agree to let me
        • When you use modern technology to do the exact same thing as quotation, there is no protection for the action.

          That's not correct. The law has specific exceptions for any activity that would ordinarily be considered fair use. That is to say, is what you're doing is fair use, the way you're doing it is automatically not illegal.

          But if I quote a piece of a beat from a song in another song, or a segment of film or TV in a video art piece, I'm expected to get the permission of the copyright owner

          It depends
          • Re:And yet (Score:3, Informative)

            That's not correct. The law has specific exceptions for any activity that would ordinarily be considered fair use. That is to say, is what you're doing is fair use, the way you're doing it is automatically not illegal.

            In practice, this is the way it works out. "Fair use" certainly includes artistic, creative works that cite originals. If I did it in a book nobody would question it. If I do it in a song, no record company in their right mind would publish it without permission (and usually big $$ fees)

        • Re:And yet (Score:3, Informative)

          by pyrotic (169450)
          "Quoting" a beat from a song is more complex. There are rights which the songwriter has, and there are rights that the performer of the song has. Generally, record companies own copyright to artist's performances, but songwriters own the right to their songs.

          Not to defend media barons from being anal about letting you quote parts of their output or anything.
      • Nobody understands copyright, except for those who realise how complex it is (like us and the "experts").
      • "To the contrary, the law specifically states that quoting a work for the purposes of commenting on it is not a violation of the work's creator's property rights."

        Unfortunately, the reality of this is different. Already, many individuals know that a certain litigious religious organization regularly sues people who quote and comment on the "copyrighted" religious works of its founder.

        Secondly, the DCMA makes no "quotation exemption" to allow one to break DRM so that you may quote a copyrighted source. I

        • Already, many individuals know that a certain litigious religious organization regularly sues people who quote and comment on the "copyrighted" religious works of its founder.

          That's not correct. If you quote something --you know, pull a small segment of it --for the purposes of criticism, you're totally clear. It's when you start illegally distributing entire works that you run afoul of the law.

          The fact that you, personally, do not like the person you're ripping off is not a legally acceptable defense.
      • Re:You mean... (Score:3, Insightful)

        by mati (114154)
        Perhaps I misread your phrasing, but my understanding has always been that copyright is not the legal recognition of natural rights, but rather a legal fiction devised to further the progress of the useful sciences and arts and thus society as a whole.

        Certainly, there's nothing natural about not being able to copy a music CD...
      • What is fucking hilarious is that the DRM that is right now going into media players and monitors will make it virtually impossible to quote from original sources; want to include a clip from a movie or a news broadcast? Sorry, that's a violation of the DRM mechanism and you cannot do it.

        The so-called "fair use" rights are poorly situated for legal protection at best, and are being eliminated systematically while complacent twits such as yourself look the other way.

      • by phr1 (211689)
        Copyright is not the recognition of a natural proprety right since there is no such natural right. The Supreme Court has been quite clear about that:

        That congress, in passing the act of 1790, did not legislate in reference to existing rights, appears clear, from the provision that the author, &c. "shall have the sole right and liberty of printing," &c. Now if this exclusive right existed at common law, and congress were about to adopt legislative provisions for its protection, would they have use

    • Re:You mean... (Score:2, Informative)

      by sytxr (704471)

      You mean this comment is my own property for 95 years just because I wrote it...

      Stay back fools and don't quote me. You'd better believe I'll protect my rights!

      You have forgotten about fair use.

      Abj GUVF vf gur jnl gb ryvzvangr snve hfr...
      Naq LBH orggre qb erfgenva sebz dhbgvat guvf Grkg. Npghnyyl, ol rira ernqvat vg, lbh ner evtug abj va ivbyngvba bs gur QZPN naq yvnoyr sbe olcnffvat bs pbcl cebgrpgvba. Rkprcg vs lbh ner hfvat gur "ZlQvtvgnyErfgevpgvbaZnantre" fbsgjner gb ivrj vg va juvpu pnfr 10 Qbyyne

      • by Seumas (6865)
        You mean this comment is my own property for 95 years just because I wrote it...

        Stay back fools and don't quote me. You'd better believe I'll protect my rights!

        You have forgotten about fair use.


        Don't you dare try to call distribution of his copyrighted comments to tens of thousands of strangers over the internet with the "fair use" of sharing his comments with one of your friends, for purpose of research or commentary! HOW DARE YOU!!!
  • by svvampy (576225) on Monday January 24, 2005 @11:10PM (#11464233)
    I'm sure that's how long it will take this case to get through the court system. If it manages to survive it's conception.
  • by LewsTherinKinslayer (817418) <lewstherinkinslayer@gmail.com> on Monday January 24, 2005 @11:12PM (#11464261) Homepage
    I personally fail to see any reason to change mid-stride like this anyways. Was the old opt-in copyright law in some way broken?

    If you want something copyrighted, you should be responsibile to take care of it. I don't give a shit about your Intellectual Property or otherwise if you can't be bothered to copyrighted.
    • by Aardpig (622459)

      Was the old opt-in copyright law in some way broken?

      Of course! It impeded corporations' God-given right to squeeze every last dollar out of citizens/customers/consumers! So it obviously had to go....

      • by Kjella (173770)
        Of course! It impeded corporations' God-given right to squeeze every last dollar out of citizens/customers/consumers!

        You forgot "cattle". Anyway, on this I think they're in the wrong. Works being copyrighted by default is better for the little guy (to big companies with a lawyer registering copyright is a no-brainer). The problem with copyright law is the duration, which is far too long.

        Copyright was (at least in the US) created to promote the progress of science and art. Back then, it seemed they rememb
    • by stubear (130454)
      The change brought us in line with copyright laws from Europe. Personally I'd rather have the moral rights clauses instead of an opt-out system.
    • Well if it wasn't broken, why did they change it to begin with?
    • It was broken... (Score:3, Insightful)

      by the_skywise (189793)
      In geek-terms, it resolves a race condition. Under the new system as soon as you create a work it gains copyright from the date of creation. If somebody steals your work and passes it off as their own and you can show proof of the date, they've violated your copyright.

      Under the old system, somebody could steal your work by taking it and copyrighting it under their name. Even if you could prove you had the earlier work the other guy had a better chance of winning because he had actually applied for, and
      • by agurkan (523320)
        no... their copyright would be invalid, since they are not the creator of the work they copyrighted. their application for copyright would have zero impact on the case of original creator's.

        this is not a race condition, either. there are not two equally valid requests for a single resource, that you need to choose from. one person is the creator, the other is not. you are neither geek nor lawyer seemingly.

    • I personally fail to see any reason to change mid-stride like this anyways. Was the old opt-in copyright law in some way broken?

      It was broken in the sense that it was incompatible with the law of pretty much every other country in the world. The change was done to make US law compatible with the Berne Convention, so the US could join.

      • This would probably break the convention, but we should have covered foreign works under the rules of the convention and kept the old system in place for works created here. That way foreign works are protected and so are ours.
  • A Lil OT (Score:4, Informative)

    by Klar (522420) * <[moc.liamg] [ta] [nihcruc]> on Monday January 24, 2005 @11:13PM (#11464269) Homepage Journal
    Not to troll, but I noticed that this link had something to do with http://www.archive.org [archive.org].. If you haven't been to this page before, you must go! It has been around for several years, and has some pretty kick ass archives of the internet.. yes.. the internet. You can get a look at snapshots of sites differet points in time. A must see.. I like looking at tech sales sites and lookin at the crazy prices :)
  • Different question (Score:4, Insightful)

    by cubicledrone (681598) on Monday January 24, 2005 @11:13PM (#11464272)
    This isn't a Constitutional issue. It's a Congressional issue. Congress has the Constitutional power to establish copyrights. In order to change that system, Congress simply needs to pass a new copyright act.
    • Yes, the power was granted to Congress by the Constitution, but only "to promote the progress of science and the useful arts", if my memory serves correctly. The argument would be that Congress has gone beyond the scope of the powers granted to it. I won't make an entire defense of their claim -- but you should read the actual filing [archive.org] linked to in the article itself, especially the Introduction section, which is (surprisingly) understandable and in plain English.

      It looks to me like this case builds a lot on
      • The "promote the progress of science" clause has been interpreted by the courts to refer only to patents. Copyright law doesn't exist to promote anything. It's just a legal recognition of a creator's property rights over his creation.
        • 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;

          I notice that both authors and inventors, writings and discoveries, are placed in the same category. Why should we treat each of them differently, viewing copyrights as inalienable property rights, while viewing patents as merely temporary protections of an idea? It seems inconsistent to me.
    • by Anonymous Coward
      There are plenty of constitutional issues at stake. For example, if I decide to use the following statement in my book: "This isn't a Constitutional issue. It's a Congressional issue. Congress has the Constitutional power to establish copyrights. In order to change that system, Congress simply needs to pass a new copyright act." ...even if I cite you, is that legal? Can Congress extend copyright to require me to get permission from you to even cite you here in my response to your silly question? Because
    • by shystershep (643874) * <bdshepherd@@@gmail...com> on Monday January 24, 2005 @11:36PM (#11464437) Homepage Journal
      Close, but no cigar. Art. 1, section 8: "The Congress shall have Power . . . To promote the Progress of Science and Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

      That clause gives Congress the power to legislate patents and copyrights, but it is limited by the phrases "to promote the progess of science and useful arts" and "for limited times." Therefore a copyright act that does more than that is unconstitutional, and congress does not have power to act unconstitutionally.

      As I understand it, their argument on appeal are that the continuous extensions of the period of copyright protection violate the limited times clause, and - separately - that the current system impinges on First Amendment free speech.
      • by geoffspear (692508) *
        An extension to 500,000 years would still be "limited", and thus constitutional. Whether or not Congress should be limited by some judge's idea of what's a "Useful Art" is certainly a debatable, but I doubt any reasonable Supreme Court would be comfortable telling Congress that the current copyright law is unconstitutionally broad because it protects some useless stuff (besides, I don't really want the government deciding what art is useful enough to deserve protection).

        As for 1st Amendment issues, ther

      • the continuous extensions of the period of copyright protection violate the limited times clause

        SCOTUS already ruled on that one in Eldred v. Ashcroft, and unfortunately said that the current copyright regimen was constitutional.
    • by k98sven (324383) on Monday January 24, 2005 @11:44PM (#11464482) Journal
      This isn't a Constitutional issue. It's a Congressional issue. Congress has the Constitutional power to establish copyrights. In order to change that system, Congress simply needs to pass a new copyright act.

      Well, changing the system isn't the issue here (although it's undoubtedly the goal). The issue here is whether the change from opt-in to opt-out was constitutional.

      Looking at the constitution, you'd hardly think it's an issue:
      The Congress shall have Power [...] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries


      But there's of course more to the constitution than just the text itself. It's how the Supreme Court interprets that text which is important.

      In Eldred vs. Ashcroft, which is very much the predecessor to this case (Larry Lessig being involved with both), the Supreme Court [supremecourtus.gov] basically said that the Sonny Bono copyright extension act was OK, since it didn't alter "the traditional contours of copyright protection".

      So, what they're arguing here is basically a follow-up on that: "Well, what about the opt-in system? Didn't that change the contours of traditional copyright?"

      I'd say it's a long shot. But I'm thankful for them trying.
  • by Space cowboy (13680) * on Monday January 24, 2005 @11:15PM (#11464285) Journal
    I doubt that opt-in copyright will be stricken from the records - the rest of the world uses it, it would create a legal nightmare for any company that spans US/international borders.

    Perhaps the real thrust is to force a 'compromise' deal, either to get a hard and fast limit of 95 years agreed (for when Mickey Mouse needs extending) or even to try and reduce that period of time.

    When you're shooting against the wind, you have to build in some compensation in order to hit the target...

    Simon
    • I doubt that opt-in copyright will be stricken from the records - the rest of the world uses it, it would create a legal nightmare for any company that spans US/international borders.

      Then perhaps the rest of the world should reconsider automatic copyrights. They may have made sense in a time when there was a definite cost involoved in the distribution of creative works which necessitated compensation for publishers and that which was public domain was passed around by oral tradition. The distinction betwe
  • 95 Years? (Score:2, Interesting)

    by GameMaster (148118)
    I thought present copyright was supposed to last for 95 years after the death of the author. There is a big difference between that and what is written in the post. Anyone care to clarify this?

    -GameMaster
    • Re:95 Years? (Score:3, Informative)

      by cpt kangarooski (3773)
      No, you're confusing two different terms. Without getting into the specific details, if a work is created by an author normally, it lasts for their life + 70 years. But if it is a work for hire, it lasts for the shorter of 120 years from creation or 95 years from first publication.

      This used to be a lot easier: upon first publication of the work, there was no copyright unless one had been specifically registered. Then the term was a flat period of time for everyone, and shorter than the current term lengths
  • Copyright (c) (Score:4, Insightful)

    by Makecash (852311) on Monday January 24, 2005 @11:27PM (#11464381) Homepage Journal
    I believe the current copyright law is
    A work that is created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author's life plus an additional 70 years after the author's death. In the case of "a joint work prepared by two or more authors who did not work for hire," the term lasts for 70 years after the last surviving author's death. For works made for hire, and for anonymous and pseudonymous works (unless the author's identity is revealed in Copyright Office records), the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter
    • What if it is made by a corp? Does it last 70 years after the charter removal by the state, ie never? What if it is transfered? How can it even be sued if the author is not alive? Who get's the money?
  • by PCM2 (4486) on Monday January 24, 2005 @11:52PM (#11464536) Homepage
    Before you all start freaking out about evil corporations, corrupt governments, and everything else (too late)...

    Understand that this is not some change that happened overnight while you were asleep. We have not had an "opt-in" copyright law in the United States since January 1, 1978. And the law was changed even before that -- Congress actually elected to amend the old copyright law in 1976. So I'd be willing to bet that this is the way copyrights have worked since before many of you were born.
  • by wemgadge (774813) on Monday January 24, 2005 @11:54PM (#11464544)
    I won't argue that life +70 is too long etc, but the point that I wanted to make about opt-out verses opt-in copyright is that under the old system, a creative work was unprotected from plagiarism until the work was officially registered with the copyright office. Here in Canada, I mail myself a copy of my work to prove date of creation (left unopened) and I'm done. Maybe the current US copyright law went too far, but opt-out copyright as a system ain't all bad.
    • Under the old system, a work did not become eligible to become part of the public domain until after it was published.

      Now, your childhood paintings will be automatically copyright until 70 years after you die!

      If a 5-year-old who grows up to be 90 made drawings today, they will still by copyright in 2160! Along with just about every other doodle, plaster handcast, home movie and blog entry every made.

      If a researcher wanted to make a book of public domain children's drawings, they'd have to wait a really

  • Unlimited Opt-in... (Score:2, Interesting)

    by kponto (821962)

    I think a fair solution would be unlimited opt-in. You need to register your copyright to begin with which gets you five or ten years, and then renew your copyright once every five years for a fee of, say, a dollar. You can renew for as long as you like (which would keep Mickey safe and sound) but if your copyright on a work isn't worth a few minutes (we could just have a web based renewal system) and a dollar once every five years, then let the public have at it. I think Lawrence Lessig promoted something

    • You need to register your copyright to begin with which gets you five or ten years, and then renew your copyright once every five years for a fee of, say, a dollar. You can renew for as long as you like (which would keep Mickey safe and sound) but if your copyright on a work isn't worth a few minutes (we could just have a web based renewal system) and a dollar once every five years, then let the public have at it.

      I disagree strongly with this proposal. The worst effect of extended copyrights in my opini

  • What ever happened to the good old days where someone could make millions off the work of others and not pay them anything for it because those others never did something which only professionals do? *(See, he's not a professional, since his work was stolen. You need to be paid to be a professional)

    Please note that all those Open Source programs which are protected only by copyright law are only being horded by you greedy bastards! Anyone who wants to should be able to use your code without your permission
    • by spitzak (4019) on Tuesday January 25, 2005 @04:12AM (#11465895) Homepage
      I'm suprised more people have not pointed this out.

      However the solution is to have a fairly short default copyright that you have to opt-out of. Not just for GPL but to get rid of the legal loophole that *anything* somebody writes is apparenty free for the taking until they manage to get the paperwork done. In a practical sense a short default copyright would stop a lot of unnecessary paperwork because the contributors could think about whether it is worth copyrighting or not, rather than being forced to submit it as fast as possible.

      I'm not sure but a length of perhaps 5 years or so would be good. Even a five-year old copy of Linux is not much use so it may not matter for GPL code if nobody filed for the copyright. After that you have to opt-in, and you have to renew the opt-in every 10 years or so after that.

      It may also help that the threat that your stuff will go into the public domain if you don't change it and you don't do the paperwork will get some of the authors to work a little more on their stuff and keep it up to date.
  • by 3seas (184403) on Tuesday January 25, 2005 @12:55AM (#11464987) Journal
    The difference between the opt-in and the opt-out is a matter of dealing with one of the properties of getting a copyright, authorship, which translates to prior art evidence.

    The opt-out still doesn't enable opt-in in those cases it is used.

    Its really quite simple, once a work is done and published, it creates prior art and this inherently prevents another from comming along and claiming ownership.

    the fundamental difference between opt-in and opt-out is the default respect given to the authorship.

    For Kyle and those like him creating an archive (ie google regarding usenet archives), which itself has public and historic value, there should be a copyright exception allowed, as it actually helps to establish and provide proof of prior art.
    As such public archiving should be considered "fair use."
  • by phr1 (211689) on Tuesday January 25, 2005 @02:49AM (#11465610)
    There has to have been a better way, or maybe a better time, to have pursued that case. We're much worse off under the Eldred ruling than if sleeping dogs had been left to lie.

    The traditional contours of copyright have been warped in a much worse way than the opt-in/opt-out division. Until the 20th century, the only way to infringe copyright was by unauthorized publication of a copyrighted work. Making a private, personal copy of something only became an infringement under the 1909 copyright act revision. If we went back to the traditional contours, all the MPAA bullshit lawsuits would have to go away at once.

    However, there is no way that Kahle could seriously litigate the above. He instead goes after opt-in/opt-out, but will get nowhere, because the same media conglomerates who stopped Eldred will stop this. They do not want a public domain to exist. They opposed the Eldred bill which tried to get abandoned works back for the public domain, by requiring a copyright renewal with a fee of one dollar after 56 years! Lessig explains: [free-culture.org]

    The opposition to the Eldred Act reveals how extreme the other side is. The most powerful and sexy and well loved of lobbies really has as its aim not the protection of "property" but the rejection of a tradition.Their aim is not simply to protect what is theirs. Their aim is to assure that all there is is what is theirs.

    It is not hard to understand why the warriors take this view. It is not hard to see why it would benefit them if the competition of the public domain tied to the Internet could somehow be quashed. Just as RCA feared the competition of FM, they fear the competition of a public domain connected to a public that now has the means to create with it and to share its own creation.
    ...
    There is a history of just such a property system that is well known in the Anglo-American tradition. It is called "feudalism." Under feudalism, not only was property held by a relatively small number of individuals and entities. And not only were the rights that ran with that property powerful and extensive. But the feudal system had a strong interest in assuring that property holders within that system not weaken feudalism by liberating people or property within their control to the free market. Feudalism depended upon maximum control and concentration. It fought any freedom that might interfere with that control. As Peter Drahos and John Braithwaite relate, this is precisely the choice we are now making about intellectual property. We will have an information society. That much is certain. Our only choice now is whether that information society will be free or feudal. The trend is toward the feudal.

    The Kahle lawsuit is an interesting intellectual exercise, but we need to treat this as a war, not a parlor game. We need better tactics to raise real political awareness, rather than filing these silly lawsuits without having the awareness wide enough.
  • by kamapuaa (555446) on Tuesday January 25, 2005 @03:29AM (#11465747) Homepage
    Does this mean we can sue timothy for posting countless dupe stories?
  • by LtOcelot (154499) on Tuesday January 25, 2005 @04:03AM (#11465873)
    Opt-out copyright has the very important benefit of providing coverage to all individual creators without requiring registration or meaningless copyright notices. Contrast this to the patent system, where only corporate entities can regularly handle the legal hassle and expense of registration. If we go back to an opt-in system, expect to see corporations claiming ownership of every scrap of paper they produce on the one hand while on the other ripping off any material they can find that isn't legally nailed down.

    If you want fair use exemptions for archiving, fight for that. If you want shorter copyright terms, fight for that. Don't push for a change toward a system that pollutes the world with even more useless copyright filings and notices than we have already while punishing those who don't have a legal department to handle the issue.
  • Freedom Now (Score:3, Insightful)

    by Doc Ruby (173196) on Tuesday January 25, 2005 @12:02PM (#11468911) Homepage Journal
    "Opt-out" is appropriate for copyright: I have the right to control copies of my unique expressions, but I can give up those rights with an express statement to that effect. "Opt-in" means a central registry is required for the default state, a huge overhead on all copying transactions for clearance; more prone to errors of omission (rather than the less common error of incorrect inclusion). An opt-out registry would be smaller and more manageable for everyone.

    The real problem is the length of copyright. The original term of 17 years should never have been extended. If anything, it should be much shorter, now that the time to generously compensate creators for their work is so much shorter in our vast, rapid mediasphere. Something like 5 years, with an option to renew only if no income has been received, to get another chance at compensation for an idea ahead of its time. FWIW, the Internet Archive (which I love) would be a great place to host the opt-out registry, along with MD5 hashes of their free media objects.

We want to create puppets that pull their own strings. - Ann Marion

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