Court Doesn't Have A Problem With Opt-Out Copyrights; Tells Kahle, Lessig To Go Home

from the setback-time dept

Late last year, we wrote a little about Larry Lessig's latest challenge concerning the constitutionality of our current copyright laws. As you hopefully recall, a few years ago he challenged the constitutionality of Congress continually extending copyright term lengths -- and lost. The Constitution is clear that the purpose of intellectual property law is to give individuals control over their works for a limited time. However, every time Mickey Mouse gets close to being put in the public domain, a bunch of lobbyists out of Hollywood convince Congress to extend copyrights. It was an unfortunate decision, but Lessig came back recently with a new lawsuit, saying that the Copyright Act of 1976, which changed the copyright system from "opt-in" to "opt-out" is also unconstitutional. These days, the second you write anything, it receives an automatic copyright. Prior to 1976, you actually had to register the content first -- meaning that there was lots of content in the public domain. These days, it's fairly difficult to get your content into the public domain (which was one of the challenges Lessig's Creative Commons operation has been trying to help solve). Unfortunately, though, it looks like the 9th Circuit Court of Appeals isn't buying Lessig's argument in the case Kahle v. Gonzalez. In fact, they claim that they don't see how the case really is any different than the Eldred copyright extension case, which is surprising, since it really is discussing something entirely different. Either way, this case is far from over. Lessig and Kahle can seek review from a larger panel, and of course, later can appeal to the Supreme Court as well -- but overall, this isn't particularly good news for copyright.


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  1.  
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    Mit, Jan 23rd, 2007 @ 7:43am

    why would they change when they are getting money from all these copyright cases going through. Or have missed something.

     

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  2.  
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    Steven, Jan 23rd, 2007 @ 7:44am

    I don't know. Given the rate the 9th circuit court gets overturned, this might be an indication that Lessig is on the right track. ;)

     

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  3.  
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    Suzerain, Jan 23rd, 2007 @ 8:10am

    Re:

    You missed something. The courts are not getting any more or less money based upon their case load. Also, since they are a court of general jurisdiction they hear almost every type of case. If you review the number of cases a district and appellate court recieve every year you would not make such a comment. Put away the conspiracy theories ;)

     

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  4.  
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    Suzerain, Jan 23rd, 2007 @ 8:11am

    Re:

    The 9th Circuit is overturned a lot on cases concerning individual liberties and privacy issues. Just like the 5th Circuit on the other side of the idealogical spectrum. On business issues, I do not believe they are overturned more than any other district.

     

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  5.  
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    Yo ho ho..., Jan 23rd, 2007 @ 8:12am

    The real point!

    Ka-Ching!!!

    The lawyers win either way -- as long as they can keep billing their clients....

    Ka-Ching, my friends, ka-ching!

     

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  6.  
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    Kevin, Jan 23rd, 2007 @ 8:12am

    I imagine Lessig will continue the case, just because he has done so much with it so far, but it seems he is moving away from using the courts to change copyright policy.

    In recent speeches, he seems to think the most important thing to change is people's habits, because the legal system is stacked against us.

     

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  7.  
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    Neal, Jan 23rd, 2007 @ 8:18am

    Copyright change

    I advocate the following change to copyright law. You get an initial period of automatic protection, 10 years, for creating a work. The protection could be extended beyond this period, in 5-10 year increments, if and only if you keep the work in production* and available to the public at a reasonable* market price.

    In other words, and this is the important part, if it's not worth production then it's not worth protection and into the public domain in goes.

    That should provide reasonable protection for everyone, including Disney, and not harm the greater good. If a work stays in demand enough for a creator to keep reproducing en-mass, at least once every 10 years, then it's under their control for a longer period of time. On the other hand, if they don't find it worth their time, trouble, or risk (financial or other) to keep the work available to the public at large then it defaults to becoming the property of the public at large.

    Honestly, I could care less about Disney's entertainment and what they do with it. What pisses me is that they deprive society of material of real value by buying legislation which also keeps books out of our hands for many, many, decades after the creator/publisher decides that all commercial value is gone. Sell it to us or give it to us, your choice, but you shouldn't be able to keep it from us just because you're too lazy, too selfish, too scared, or too comfortable to bother with keeping it in production.

    *"In production" and "reasonable market price" would have to be defined so as not to allow loopholes that extend protection without realistically keep the work available. An item in active production in quantity would allow for greater than the inflation adjusted original price since lower volume would be likely and a real attempt at commericalization was being made. For one-off or on-demand works price restrictions would be put in place to qualify for the extension: no more than twice the original price (adjusted for inflation), no more than twice the price of comparable items on the market, etc.

     

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  8.  
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    Anonymous Coward, Jan 23rd, 2007 @ 8:45am

    2 Neal: Amen!

     

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  9.  
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    misanthropic humanist, Jan 23rd, 2007 @ 8:58am

    Re: Copyright change

    Most people would agree with your thoughts Neal. One of the evils of the current copyright system is that it is used to bury works. That goes against the original principles of copyright, to promote the arts by giving a creator protection when they disseminate their work.

    But you are missing a subtle point. Even though your stated system
    "The protection could be extended beyond this period, in 5-10 year increments, if and only if you keep the work in production* and available to the public at a reasonable* market price."
    will work for the case where "in production" means publication on a single website, and "reasonable market price" is zero, the assumption that the only point of copyright is to leverage a return from sales in a market should be avoided.

    For a great many people copyright protects them from plagarism and misattribution. Selling the work is not a primary motive. What they wish to avoid is somebody taking their work and fraudulently adding another name to it. Any amendment to copyright law should not only take into account the financial motive.

    You would have to deal very carefully with "in production" too. You don't want a scenario where because somebodys website goes down for a day they forfeit all copyright claims. On the other hand you don't want works that have clearly been abandoned in the public domain for years to become "copyright zombies" because nobody can contact the author and establish its status.

     

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  10.  
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    Anonymous Coward, Jan 23rd, 2007 @ 9:11am

    neal, i must ask you, what was the intent of copyright?

    wasn't it to encure the continuing creation of ideas? i.e. make something, and get paid for the uniqueness of it, and take that time to develop something else? why then must disney or any other company be allowed to keep control over an idea if it serves a greater good? should a drug company be allowed to horde a cure for cancer/aids just to rack up a buck? or to horde it to put another company out of business? yes, i know the "capitalistic" society we live in (it's not capitalistic, btw)

    however, i believe you are walking in the right direction. immediate change won't happen over night. and so i mentioned, copyrights were developed so IP creators could survive from one creation to the next. they weren't created to let the creator freeload for the rest of their life.

     

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  11.  
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    Buzz, Jan 23rd, 2007 @ 9:35am

    By the way...

    While were on the topic of copyright violation, I'd like to share my copyright violation with everyone. I created a Facebook group entitled Techdirt Readers (I searched and found no other Techdirt groups). Not only do I have 'Techdirt' in the title but I also used Techdirt's site logo for the group logo. Man oh man, am I gonna be in BIIIG trouble.

    But seriously, I did create that group. If you have Facebook, join "Techdirt Readers"!

    http://byui.facebook.com/group.php?gid=2233709113

     

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  12.  
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    Neal, Jan 23rd, 2007 @ 10:07am

    misanthropic humanist - I don't see any issue whatsoever with plagarism and misattribution. If you've created something and your motives for protection are financial then you keep selling it and it'll be protected. If you've created something and your motives for protection are wanting proper attribution then simply publishing it to the web for free would meet the requirement for making it available and the protect would stay in place just the same.

    The production requirement would simply be a requirement that you continue to make the content available in order for it to be protected. The reasonable price requirement wouldn't exclude a no cost distribution that enables protection, but it would prevent excessive prices being used to circumvent the spirit of the law.

    Re: production - That's why I stated 5-10 year extensions. A reprint, or a manufacturing run in the period, and your protection gets extended. The idea being when you quit making your work readily available your 5-10 year countdown begins. Publishing your work on your web site for one day once every ten years shouldn't be enough to keep it in your control, likewise failing to publish it for one day or one month or even one year shouldn't release it from your control.

    I'm proposing a general concept, the spirit of the law if you will.

    AC - I agree with you 100 percent. My Disney comment was just to point out that I personally don't give a damn about entertainment and like it or not we're not going to defeat Disney's affect on our greedy politicians so let's go for a middleground that helps us greatly but doesn't measurably hurt them - we might achieve that.

     

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  13.  
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    Buzz, Jan 23rd, 2007 @ 10:10am

    OMG

    People are out of control with this whole copyright ordeal. I just recently created a Facebook group entitled "Techdirt Readers"; not only did I use the word 'Techdirt', I even used Techdirt's site logo in the group. My oh my, what has the world come to? I'm using copyrighted material without permission. >_

     

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  14.  
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    misanthropic humanist, Jan 23rd, 2007 @ 10:18am

    spirit

    I'm proposing a general concept, the spirit of the law if you will.

    Yes. Sorry I take your point. I was lost in the letter of the law there considering "what ifs".

    In fact I've said myself before, prominent publication and encouraging others to disseminate your properly attributed work is probably the best protection of all, copyright or not. Especially in this age of Google
    and Creative Commons.

     

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  15.  
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    rstr5105, Jan 23rd, 2007 @ 10:25am

    From the first posting of this issue: Here's an I

    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 and usual legal stuff attached.

    Or, 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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  16.  
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    Buzz, Jan 23rd, 2007 @ 10:48am

    Yup

    I agree with rstr5105. I second the motion for a Copyleft system.

     

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  17.  
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    G-rad, Jan 23rd, 2007 @ 11:04am

    Re: OMG

    not only did I use the word 'Techdirt', I even used Techdirt's site logo in the group. My oh my, what has the world come to? I'm using copyrighted material without permission.

    No, you used a trademark without permission.

     

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  18.  
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    Buzz, Jan 23rd, 2007 @ 6:51pm

    true

    Ah yes... Trademark! Thanx, G-rad. Now I will sue you for quoting my words without permission.

    BTW, pardon the double post earlier, everyone. One of my posts didn't go through earlier, but then it popped up. >_

     

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