Lessig Challenges The Constitutionality Of An Opt-Out Copyright System

from the fight-for-the-right-to-free-content dept

When professor Larry Lessig lost his Supreme Court challenge ("the Eldred case") concerning the constitutionality of Congress continually extending the length of copyright, he seemed to spend over a year kicking himself for the mistakes that he believes he made in arguing the case. However, it was only a matter of time before he came back fighting, using the results of the Eldred case to his advantage. He's been writing some posts on his blog about his latest case, Kahle vs. Gonzalez, which actually uses the specifics of the ruling in the Eldred case not to focus on copyright extension, but to question the constitutionality of switching to an "opt-out" system of copyright. For years, copyright was an "opt-in" system. If you wanted to get a copyright, you needed to register. However, in 1976, the law changed to make it opt-out. That meant that any new creative work was automatically considered covered by copyright. While you could register it for additional protections, you didn't need to. That flipped the equation, taking a ton of content out of the public domain and covering it by automatic copyright -- something that Lessig and Brewster Kahle are now arguing goes against "the traditional contour of copyright protection." This is important, because the Supreme Court's decision in Eldred focused on that very test. While it may be a while before any final results are in, if the case goes in favor of Kahle and Lessig, it could mean a huge change in copyright law. Some may say it would just shift the law back to what it was 30 years ago, but the changes in technology and the means of publishing would suggest that the impact would be much more far reaching than simply turning back the clock.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Charles Griswold, Nov 15th, 2006 @ 3:28am

    The Internet

    "Some may say it would just shift the law back to what it was 30 years ago, but the changes in technology and the means of publishing would suggest that the impact would be much more far reaching than simply turning back the clock."

    That's an understatement. 30 years ago, the internet didn't exist. Given the proliferation of publishing on the internet, an opt-out system makes sense. If people had to submit everything that they published on the internet to the copyright registry in order to have any copyright protection, the copyright registry would be completely overwhelmed. It would be far worse than the problems currently facing the patent office.

    Of course, they could just raise the cost to register, but that would mean that individuals would not be able to protect their personal web pages, leaving the advantage to the corporations.

    The current copyright system might have problems, but that doesn't mean that we should just take an axe to it.

     

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  2.  
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    Nobody Special, Nov 15th, 2006 @ 4:07am

    Aim for the target

    While I admire Lessig for wanting to limit the extent of copyright, I don't think he is aiming in the right direction. The implications of such a shift are beyond the scope of what we could handle. Consider the rush to the Copyright office for a moment. It isn't just the small guy who doesn't register everything. Suddenly corporations would flood the office with every marketing brochure, every product manual, etc.

    And what would it really accomplish? It would benefit the people Lessig were originally targeting at the expense of who he (presumably) was hoping to assist. That is unless his point was to win a case against the copyright system without regard to who suffered the consequence.

     

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  3.  
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    Exiled From the mainstream, Nov 15th, 2006 @ 4:12am

    Ok lemme get this straight...

    According to this I could make a picture of a stickman and it magically gets copyright? I'd probably have to publish it or something first but still. Just seems odd. And much as I like open source stuff it does make sense in the age of computers and information. Mr.Griswold pretty much hit the nail on the head, the offices would get SWAMPED in so much stuff it ain't funny. I've seen how insane the legal system of the US is but it'll take more than turning back the clock as you put it to fix things Mike. Course anyone could see that but the ambulance chasers.

    Then again to fix it'll take a total rewrite of the entire system. But wouldn't that be good? I mean the world itself has changed a LOT thanks to the internet, I just wonder if humanity can still adapt like it used to. I still think Darwin is spinning in his grave fast enough to make a perpetual motion machine now though.

     

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  4.  
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    Michael Long, Nov 15th, 2006 @ 4:47am

    Internet

    Seems like this would make the internet world much more difficult in general, and running a site like TechDirt much more difficult in particular.

    The devil is in the details, of course, but does that mean that someone would have to submit each and every blog post and artilcle on their site to the copyright office? And if they failed to do so for each and every one could I, for example, setup a MikesDirt site and copy articles at will?

    One of the prior posters is right. All this seems to do is dismantle protections for the majority of us, while ensuring that those with the time and money (e.g. corporations) have all of THEIR works protected.

     

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  5.  
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    smog, Nov 15th, 2006 @ 5:02am

    re: OK lemme get this straight...

    welcome to reality, thanks for joining us

     

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  6.  
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    zorn, Nov 15th, 2006 @ 5:05am

    if you copied techdirt articles

    it would be plagarism if you said they were your works.

    maybe... the copyright thing should turn back, because why is it so bad that people put comedy central clips on youtube.com? The credit goes to the show...
    passing those stories by word of mouth, they are copyrighted'
    so if you made a mikesdirt site and copied techdirt, BUT gave them credit (plagarism is different than breaking copyright) it SHOULD be ok.

    imo if i give credit to playboy for putting a picture they took on a site of mine, itshould be ok. they get credit for authoring the media. copyright is just greed.

    too bad they didnt copyright the bible 2000 years ago.

    wouldnt the world be a little different.

     

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  7.  
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    bored now, Nov 15th, 2006 @ 5:27am

    hold on a minute

    So, Lessig is now saying that opt-out is wrong when it benefits rights owners, but OK when it screws rights owners to benfit e.g. Google. Give me a break!

    eg his blog entry on Google Print for libraries at
    http://www.lessig.org/blog/archives/003140.shtml

     

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  8.  
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    Michael Long, Nov 15th, 2006 @ 5:28am

    Re: if you copied techdirt articles

    So what if its plagarism? Without copyright protections and the law behind it, what would stop me from doing MikesDirt otherwise? And taking complete credit for "my" work and "my" insightful articles? Yeah, it's wrong, and I might feel bad for ten minutes, but so what? I'm sure the AdWords income would make me feel better.

    With copyright protections, however, Mike has a halfway decent chance of suing my butt, or at least getting an ISP to take down the site containing his ripped off content.

    Don't get me wrong. I thnk CR terms need to decreased, not increased, and preferably down to something like 5-7 years or so. But in this case, Lessig is barking up the wrong tree.

     

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  9.  
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    copyright joe, Nov 15th, 2006 @ 5:47am

    treatiies require opt-out

    The main reason the US switched to opt-out in '76 is because the rest of the world had always been that way. To get US copyrights respected around the world, the US had to sign on to international treaties. Those treaties required a common base of copyright law in all members. So the US' quirky system was replaced with the standard in the rest of the developed world.

    It's even more important today, with the Internet, that basic copyright law be more or less uniform across nations.

     

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  10.  
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    scate, Nov 15th, 2006 @ 8:29am

    The presumption of copyright is just silly as are the terms. Right now, any unpublished anonymous photo not explicitly signed over to the public domain from 1890 is still considered copyright!!! (120 years is the presumption for anonymous unpublished works--works published before 1923 are fairgame...) You are not allowed to copy the anonymous unpublished photos from the 1890s you find in the attic!

    Dead people don't need copyright protection. The insanity just has to stop.

    IANAL

     

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  11.  
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    The Dukeman (profile), Nov 15th, 2006 @ 8:49am

    Re: The Internet

    They did raise the price for copyright protection this year, as well as tightened the controls on how to submit a work for copyright protection, citing Homeland Security issues for the latter. It is still relatively cheap, though.

    It is absurd that a copyright should extend beyond the life of the creator of the work. Constitutional or not, the so-called "opt-out" system of copyright law is a good thing, especially for starving artists like the songwriter in your local band. However, the scope of what may be copyrighted definitely does need addressing.

     

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  12.  
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    Joshua, Nov 15th, 2006 @ 9:10am

    Opt-In doesn't necessarily mean you have to file. Simply declaring that you have a copyright on something could be enough. As it is, even works that have no identifiable owner are copyrighted and unavailable for public use.

    A simple opt-in system where you have positively declare your copyright, and hence identify your work and set a clear date for others to work with regarding when it *does* become public domain, could only help the situation. The poor starving artist can figure out how to sign his work and add the little © to it.

    Everyone who cares about copyright should already be doing this, so it will be no large burden and the fact that you can just declare it means that there will be no greater load on the copyright offices.

     

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  13.  
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    Mike (profile), Nov 15th, 2006 @ 9:39am

    Re: Internet

    And if they failed to do so for each and every one could I, for example, setup a MikesDirt site and copy articles at will?

    I'm sure it could be set up so that you could just copyright all of the content, now and future, for a site. But, if you want to just create MikesDirt, go ahead. I never understand why people always insist that we'll sue them if they copied techdirt. There are at least 6 sites out there right now that copy every post on Techdirt moments after it's posted, pretending to be their own site, and I just find it amusing. No one goes to those sites. Why would they? It's a waste of effort by those who spend time making those sites. They add no value and therefore no one bothers to visit them.

     

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  14.  
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    rstr5105, Nov 15th, 2006 @ 10:17am

    here's an Idea

    How about we change the copyright system as such that all creative works are automatically copyrighted and are also Public Domain so long as you don't try to claim the original rights to them.

    Now if something NEEDS to be in the private domain, you HAVE to OPT in for that, for example If I were in a band and we release a song if I choose not to opt in for private domain anybody out there can use that song for whatever purpose they want, royalty free etc etc etc. This includes P2P networking and the such. IF however I opt in on the privatization of it, then any use has royalties attached.

    In this model, (at least as far as music is concerned) we kinda kill two birds with one stone here as it would put the artists directly in control of their work eliminating the need for the RIAA/MPAA. Also it would be copyright reform.

    Or here is another Idea, how about we just move everything over to Copyleft?

    I know both of those suggestions need work, but I am sure with the proper NON government think tank on the job we can find a solution that will make everyone happy.

     

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  15.  
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    chris (profile), Nov 15th, 2006 @ 10:45am

    Re: The Internet

    Given the proliferation of publishing on the internet, an opt-out system makes sense. If people had to submit everything that they published on the internet to the copyright registry in order to have any copyright protection, the copyright registry would be completely overwhelmed. It would be far worse than the problems currently facing the patent office.

    i disagree. the internet makes publishing a breeze now. with the number of web "publishers" increasing daily, the odds of "infringement" become more and more likely. with millions of blogs, comments, and other posts, all of which are automatically copyrighted, anyone could technically claim infringement on just about any work.

    opt-in copyright means you can borrow and share by default, where as opt-out copy right means you have to take steps to free up rights to your work (i.e creative commons). i would assert that 80% of the material available on the web is not really worth copyrighting and 80% of the people with something posted online wouldn't care if someone made fair use of their work.

    here's an example:

    i have a a bunch of crackpot theories that i discuss in various forums like slashdot or techdirt or post to my own personal blog. if someone sees what i say and makes observations of thier own then they should, according to copyright law, cite my work as their basis. right now i am a nobody and none of my writing inspires anyone, and posting to public forums and my own website costs me nothing. if someone uses my ideas to make some money, who really cares?

    if i were to decide to become a consultant or a novelist, all of that writing would suddenly become a real asset to me. since i don't have to register my work as copyrighted, i can now troll other writers with similar ideas (and no money) and try to squeeze them for rights infringement.

    if i had to register my copyrights, then i would have to pay to register my copyrights BEFORE i could squeeze anyone... forcing me to pick my battles and invest more into my ideas to make sure that my claims to the ideas are legitimate. even a nominal fee would force most people to reconsider the value of that work.

    a lot of what is posted to the internet is freeform discussion, fan service, or editorial/opinion that is wonderful for discussion, but not necessarily worthy of copyright.

     

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  16.  
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    Charles Griswold, Nov 15th, 2006 @ 3:55pm

    Re: here's an Idea

    How about we change the copyright system as such that all creative works are automatically copyrighted and are also Public Domain so long as you don't try to claim the original rights to them.

    I think that you're looking for another term. "Public Domain" specifically means that the work in question has no copyright. Under current law that means that the copyright has expired. It's not clear whether or not someone can deliberately place works in the Public Domain.

    Or here is another Idea, how about we just move everything over to Copyleft?

    It's an appealing idea, but unfortunately is somewhat problematic.

    I like the idea that works are automatically copyrighted, but that the automatic rights are very limited. If you want stronger rights, you need to specifically assert them. If you want the strongest rights along with the legal muscle to enforce those rights, then the work needs to be registered.

    I also believe that the current greatly-extended copyright period needs to be cut back to the original copyright period. Yeah, yeah, I know. Poor Disney :-P

     

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  17.  
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    rstr5105, Nov 15th, 2006 @ 6:41pm

    Re: Re: here's an Idea

    Wait....I came up with a good idea???

    What's wrong with the techdirt community today? :P

     

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  18.  
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    Michael Long, Nov 16th, 2006 @ 3:14am

    Counterfeit

    There are at least 6 sites out there right now that copy every post on Techdirt moments after it's posted ... No one goes to those sites.

    I'd probably have to disagree with that statement, since I doubt that people would continually take the effort to copy your work and post it on their sites if they have no traffic and no results whatsoever. Further, if those sites are in the domains for other countries (e.g. .ca, .in), then it's entirely possible that they're getting higher traffic than you are in that country off country-specfic search engines, blogs, etc..

    And if I'd happened to stumble across their site first, I could just as easily assume that your site is the copycat.

    Be that as it may, I sort of thought that's how you'd feel about it, since there's no standard copyright notice on the site... though I also saw there's also no explicit notice placing your content in the public domain either.

    BTW, does this mean I can republish your intelligence reports too? Might be a nice little business there... ;)

     

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  19.  
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    supercat, Nov 17th, 2006 @ 7:32pm

    A sensible copyright approach

    I would suggest that all creative works should receive some copyright protection automatically, but such protections should be of limited duration (10-20 years max). Anyone seeking a longer term of protection would be required to take affirmative steps to register their works and ensure that the copyright holders were, and remained, locatable.

    Under the present rules (even without further extensions), a work which says "Copyright John Smith 1980" may still be under copyright in the year 2130. If Mr. Smith was born in 1960 and lived until 2061, his copyright wouldn't expire until 2131. If someone in the year 2100 wants to use the work, and queries the obituaries to discover that thousands of John Smiths have died between 1980 and 2100, would that suggest that the work was or was not still under copyright?

    I would propose as a rule that the LC should give out unique ID's free upon request; authors would be strongly encouraged to mark their works with ID's. An author of a work could for a very small fee, within a few years of creating works, submit a list of id's along with the dates of creation and a means of contact. The author would be responsible for maintaining his database entries; should they go out of date for too long, a significant fee would be required to recover copyright.

    Works published without an ID would still be eligible for copyright protection, but the registration fees would be much higher (so as to encourage authors to avoid releasing works without ID's).

    If a company wants a 100-year copyright on a work which it continues to publish, I won't overly strongly object. But protecting copyrights on works whose publishers have long since gone out of business provides no legitimate benefit to anyone.

     

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