Kahle v Ashcroft Appeal Filed 359
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."
Innie or Outie? (Score:1, Interesting)
Does the constitution really indicate a preference?
Rest of your life and beyond (Score:1, Interesting)
This "transfer" of copyrights to a heir or something is stupid too, they didn't come up with the damn idea, why the hell should I pay THEM? Greedy brats.
Re:If it ain't broke... (Score:3, Interesting)
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....
95 Years? (Score:2, Interesting)
-GameMaster
Re:Different question (Score:5, Interesting)
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:
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.
Re:You mean... (Score:4, Interesting)
Re:Different question (Score:2, Interesting)
As for 1st Amendment issues, there are none. If Congress tried to prohibit the press for reporting on copyrighted works, there would be an issue. But your freedom of speech is hardly infringed if you're not allowed to copy someone else's published "speech", especially with the fair use provisions of copyright law covering pretty much any reasonable use that could be considered protected speech.
Re:Correct me if I'm wrong... (Score:5, Interesting)
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.
Re:You mean... (Score:2, Interesting)
But hey, I'm just rambling.
Unlimited Opt-in... (Score:2, Interesting)
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 similar to this in Free Culture.
kRe:You mean... (Score:1, Interesting)
its not quite what you think... (Score:3, Interesting)
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."
Re:Different question (Score:3, Interesting)
Re:Different question (Score:3, Interesting)
Even if I wanted to, I couldn't argue with your assertion that the Supreme Court is result-oriented, but I would argue that the biggest problem is not the court "usurping" congress' authority, but rather allowing congress to expand its own authority way beyond what was intended in the Constitution. The commerce clause, which is the basis for the vast majority of federal law, has been so stretched out of shape that can (& does) cover almost any conceivable subject of legislation.
An almost unlimited Congress scares me a lot more than shoddy reasoning on the Supreme Court. In fact, I'd even go so far as to say that there would me much less occasion for "judicial legislating" if there were fewer wide-ranging and poorly-drafted laws.
Re:Correct me if I'm wrong... (Score:3, Interesting)
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 in to alow the US to sign without changing their laws---strange place this world is!
Re:Thanks Europe (Score:4, Interesting)
Opt-out has its good sides - it avoids the problem of mistakenly releasing something or having to clutter everything with copyright notices. Opt-in in itself isn't the problem. The problem is the form it has taken, where protection has gotten longer and longer.
I'd have no problem with opt-out if it was structured differently. Say, copyright on a work that doesn't either have a copyright notice, OR have been registered expires after a short amount of time after publication - say 5 years - unless copyright is registered in the meantime. It would mean that even if you couldn't prove the publication date, if you receive a work and it is not registered, you KNOW it will be out of copyright in 5 years unless there is registration at the end of that period. That's not much of a burden.
If you then further requires all work to be registered to get longer protection than, say, 20 years from publication, and be renewed every 20 years after that up to a maximum, then works that have commercial value can remain protected, while work where the owner loses interest or "disappears" will still enter the public domain relatively quickly.
It would give you automatic protection, the ability to easily prevent "mistakes" where you released something without a notice, and the ability to get protection up to 20 years without a registration by placing a notice on your work, or significantly longer if you bother with the paperwork.
There are many ways of making both opt-in and opt-out work. The problem is that the people with significant investments in copyrighted works aren't interested, and they spend fortunes on lobbying.
Re:Unlimited Opt-in... (Score:3, Interesting)
You are missing the point. My point was that this proposal does not solve one of the major problems with the state of copyright. The problem is that there is no public access to copyrighted works. Major publishers own the rights to books, music, and movies and there is no way for me to buy a copy or get a copy. This is basically erasing a huge chunk of our heritage, exactly the opposite of the intentions of the original authors of copyrights.
Some of those works would enter the public domain with this proposal, but not enough. Major media companies would just renew the copyright on everything, still refuse to sell them, and the only difference is that they have to pay a minor fee. A $1 fee is not enough to keep major companies from just renewing everything, even if they never plan to sell it again.
A better solution is to require that all copyrighted works be available for sale at a reasonable market rate. Any work that a company does not offer for sale becomes public domain. This would not remove any incentive to create new works as it will remain copyrighted until you stop selling it (making money on it) but will prevent hoarding, prevent works from disappearing into the vaults, and prevent companies from suppressing works. If there is a vested public interest that is sufficient to warrant a government sponsored monopoly, then it should also be sufficient to warrant the requirement that these works be available to the people.