Judge Rejects Einstein Publicity Rights Claim... By Playing Dice With The Law

from the finger-in-the-wind dept

A couple years ago, we wrote about Hebrew University suing GM for using an image of Albert Einstein in an ad without first getting permission (i.e., paying up). Einstein left his assets to Hebrew University (of which he was a founder and a big supporter), and Hebrew University has taken that to an extreme, more or less arguing near complete ownership over Einstein's likeness, and has been ridiculously aggressive in trying to enforce those rights -- to the point of tricking print shops into printing Einstein images, only to threaten them with lawsuits. All this despite the concept of publicity rights barely even existing in Einstein's time, and no indication that he cared one way or the other about such things.

Hebrew University came up short in the GM case recently, as the district court rejected the publicity rights claim -- but for bizarre reasons. Part of the issue is that publicity rights are both relatively new and are a part of state law (where they exist), meaning they differ from state to state. And, a big issue is whether or not they apply after death. In some states they do. In some states they don't. In others... the law doesn't say. That's the case here, where the publicity rights law in question was New Jersey's (where Einstein resided when he died) -- and it's just common law, as opposed to actual regulations. Thus, there just isn't any clear statement in terms of publicity rights after death, since there's no actual law on the books. So what did the court do? It just went ahead and decided randomly that publicity rights do live on after death, but just for 50 years. Why 50? Well, for one reason, it's one more than 49 and one less than 51.
A maximum 50-year postmortem duration here would be a reasonable middle ground that is long enough for a deceased celebrity’s heirs to take advantage of and reap the benefit of the personal aspects of the right.... The obviously humorous ad for the 2010 Terrain having been published 55 years or more after Einstein’s death, it is unlikely that any viewer of it could reasonably infer that Einstein or whoever succeeded to any right of publicity that Einstein may have had was endorsing the GMC Terrain.
Actually, the defense of the 50 number is even more bizarre. The judge looks to copyright law -- in part because Hebrew University argued that copyright's "life plus 70 years" made sense. The judge, used some of that -- saying copyright was a good measuring stick, but rejected the 70 years after death, because at the time Hebrew University got the rights (1982), the copyright term was 50 years after death -- so the judge used that as the base. Huh? First of all, copyright and publicity rights are entirely different things, for different purposes, designed to deal with different issues, and coming from different legal concepts. They come out of entirely different legal theories. Mixing and matching them makes no sense. Even then, if we accept the judge's thinking that we should go with the length as of 1982, it still doesn't make much sense. Since he's basing this (for reasons we still can't fathom) on copyright length, it seems worth pointing out that copyright term extension (thank you Sonny Bono) took everything to 70 years... retroactively. So works created in 1982 get life plus 70 anyway. So, the life plus 50 is supported by... nothing.

The judge tries really hard to make the case that there are enough similarities between copyright and publicity rights for this arbitrary number to make sense, but it's a really strained argument:
There are certain similarities between the goals of copyright and those of the right of publicity. In a sense, both rights evolve from an act of creation, whether it is the creation of a “work” such as a writing or the creation of a cultivated persona. These acts of creation are the product of an individual’s choices and self-expression.
But that's not true, even if he cites some other courts making the similarly baseless claim. Copyright is federal law designed for the "promotion of the progress." Publicity rights are this quasi-restriction that has really only appeared in the last few decades, and seems much more similar to trademark than to copyright. That's because it's more about avoiding having the public think the person in question "endorsed" a product when they did not. That's completely unrelated to copyright. The real culprit here is the ridiculous lumping of completely different concepts into the "intellectual property" bucket. Lazy judges are saying "well that's intellectual property and that's intellectual property, so they're analogous." Even when they're not. At all. The judge quotes a bunch of courts who make really really wrong statements. For example, the Zacchini case, where a judge argued that publicity rights are "closely analogous to the goals of patent and copyright law, focusing on the right of the individual to reap the reward of his endeavors and having little to do with protecting feelings or reputation." Again, though, that's not true. The "reap the reward" part (in both cases) is the means, not the end. But the end point in both cases is entirely different. Frustrating that judges could get something so simple so wrong.

The judge notes some differences between publicity rights and copyright, but just lists out some (though, certainly not all -- or even the major) differences, and leaves it at that. He then just looks at other states, and how they handle the term of publicity rights, and decides that 50 years fits within the reasonable range, and that since we're (just) past that, Einstein's "persona should be freely available to those who seek to appropriate it as part of their own expression, even in tasteless ads."

Well, I agree with that last part, at least. But the whole life-plus-50-years rationalization sets a random precedent based on a judge's fabrication -- and that seems problematic.


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    Ima Fish (profile), Oct 30th, 2012 @ 7:07am

    Sometimes it's fun watching intellect crash into ignorance.

     

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      Bengie, Oct 30th, 2012 @ 9:06am

      Re:

      "Knowing your limits" is a form of intelligence that this judge does not have, which I think is a huge part of "wisdom".

       

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    E. Zachary Knight (profile), Oct 30th, 2012 @ 7:25am

    Judges create laws

    This is probably one of the most clear cases of a judge legislating from the bench. The judge could not find a law to support any claim from either side so he made up one that fit his conclusion.

    He could have easily just ruled that sense the Hebrew University could present no legal basis for their publicity rights claim that their suit was invalid. Instead, he wanted to create some kind of precedent that will do nothing but confuse the issue in the future.

     

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      Anonymous Coward, Oct 30th, 2012 @ 7:53am

      Re: Judges create laws

      This is probably one of the most clear cases of a judge legislating from the bench.

      Did you whine that the judge was "legislating from the bench" when Tenenbaum's or Thomas-Rasset's damages were cut to $2,250 per song because the judge decided that's all the Constitution would allow?

      Judges make decisions like this everyday. It's funny to watch you guys react like this is something new.

       

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        The eejit (profile), Oct 30th, 2012 @ 8:04am

        Re: Re: Judges create laws

        The difference between the two cases is orders of magnitude: for a start, in this case there is no legal precedent in the court for this. None whatsoever. In the Tenenbaum and Thomas-Rasset cases, there was not only a legal precedent, but a statute of civil fines in place.

         

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        E. Zachary Knight (profile), Oct 30th, 2012 @ 8:55am

        Re: Re: Judges create laws

        Legislating from the bench requires making up rules that do not exist or changing rules that are plainly read.

        What happened in the cases you cite is a judge doing what they are set to do, pronounce sentences. A Judge has the right to amend the jury awards if s/he believes it to be contrary to the Constitution or legal precedent. However, that is not legislating from the bench.

         

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          Anonymous Coward, Oct 30th, 2012 @ 9:17am

          Re: Re: Re: Judges create laws

          Where in the Constitution does it say that file-sharers can be on the hook for $2,250 per song at the most? That's a made up rule if there ever was one. Congress, the actual legislature, said damages could be up to $150,000 per song. Defying what Congress actually wrote explicitly into the law, the judges in both instances made up their own rule that clashed with the actual written rule. That is legislating from the bench.

          Here, there is no written rule that the judge clashed with. Instead, the judge had to decide how long publicity rights last in NJ. The judge did not ignore any explicit rules.

          The university asked the court to say that publicity rights in NJ last either 70 years or indefinitely. The judge decided that 50 years was what the court in NJ would likely decide, so that's what it went with. This was a concrete case between adversaries where an answer to that question was actually needed. The judge didn't just decide the law in NJ. He decided the law that would apply to the concrete case before him.

          I would think that since the university got only 50 years of IP protection, instead of 70 years or infinitely many years, you anti-IP folks would be celebrating.

          So honestly, I don't see how the damages issue in Tenenbaum or Thomas-Rasset is just a judge following the law (while explicitly deciding not to follow it), while this case is a judge not following the law (when the existing law is absent on the issue). Do you have an argument that makes sense, or are you just in defend-Mike-aimlessly mode as per usual?

           

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            Anonymous Coward, Oct 30th, 2012 @ 9:31am

            Re: Re: Re: Re: Judges create laws

            AC The '$150,000 per song' is for criminal copyright infringement, in both cases you cite they were not profiting from file sharing and so criminal copyright infringement really doesn't sit well.

             

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              Anonymous Coward, Oct 30th, 2012 @ 9:35am

              Re: Re: Re: Re: Re: Judges create laws

              AC The '$150,000 per song' is for criminal copyright infringement, in both cases you cite they were not profiting from file sharing and so criminal copyright infringement really doesn't sit well.

              The $150,000 is for willful copyright infringement. It need not be criminal. Both Tenenbaum and Thomas-Rasset were willful infringers.

              http://www.law.cornell.edu/uscode/text/17/504

               

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            E. Zachary Knight (profile), Oct 30th, 2012 @ 10:11am

            Re: Re: Re: Re: Judges create laws

            The judge also has to square the jury award against the 8th amendment which bars excessive fines. So yes, the judge in that case was doing his judiciary duty.

            "The university asked the court to say that publicity rights in NJ last either 70 years or indefinitely. The judge decided that 50 years was what the court in NJ would likely decide, so that's what it went with. This was a concrete case between adversaries where an answer to that question was actually needed. The judge didn't just decide the law in NJ. He decided the law that would apply to the concrete case before him."

            I agree an answer was needed. However, the only clear answer was that there are no laws stating otherwise, so publicity rights don't exist. Making up a law, which the life+50 year judgement is, was the wrong choice.

            I would think that since the university got only 50 years of IP protection, instead of 70 years or infinitely many years, you anti-IP folks would be celebrating.

            We are fine with the general idea of the Hebrew University losing the case, but the actual ruling sets a dangerous and wrong precedent. As I said already, they should have lost because there is no publicity right for them to claim.

             

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              Anonymous Coward, Oct 30th, 2012 @ 10:46am

              Re: Re: Re: Re: Re: Judges create laws

              Wow. So many errors.

              The judge also has to square the jury award against the 8th amendment which bars excessive fines. So yes, the judge in that case was doing his judiciary duty.

              8th Amendment excessive fines was not the issue there since statutory damages are not "fines." The issue was the due process clause. Regardless, you haven't distinguished how the judges there were doing their "judiciary duty," while the court here was not. Don't work backwards!

              I agree an answer was needed. However, the only clear answer was that there are no laws stating otherwise, so publicity rights don't exist. Making up a law, which the life+50 year judgement is, was the wrong choice.

              The judge did not invent publicity rights. They already existed in New Jersey. The issue was how long those rights lasted.

              We are fine with the general idea of the Hebrew University losing the case, but the actual ruling sets a dangerous and wrong precedent. As I said already, they should have lost because there is no publicity right for them to claim.

              Again, this judge did not invent publicity rights in New Jersey. Understanding that, how are you going to spin this as something we should all be scared of? IP rights are so scary!!!

               

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                E. Zachary Knight (profile), Oct 30th, 2012 @ 11:00am

                Re: Re: Re: Re: Re: Re: Judges create laws

                Understanding that, how are you going to spin this as something we should all be scared of? IP rights are so scary!!!

                1) Publicity rights are not intelectual property.
                2) The Judge pulled a random number from his butt to create a publicity rights term that does not exist.

                Are those clear enough for you?

                 

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                  Anonymous Coward, Oct 30th, 2012 @ 11:42am

                  Re: Re: Re: Re: Re: Re: Re: Judges create laws

                  1) Publicity rights are not intelectual property.

                  Of course they are. Says so right in the opinion. Do you not understand what intellectual property is?

                  2) The Judge pulled a random number from his butt to create a publicity rights term that does not exist.

                  The judge had to decide whether Einstein's publicity rights still were in force or not, so he had to decide concretely when they ended. Just like the judges in Tenenbaum and Thomas-Rasset pulled the $2,250 number out of thin air.

                   

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                Anonymous Coward, Oct 30th, 2012 @ 1:49pm

                Re: Re: Re: Re: Re: Re: Judges create laws

                The judge did not invent publicity rights. They already existed in New Jersey. The issue was how long those rights lasted.

                They were common law, not codified law, so they kinda existed, but not in the books. Thus, no code, legislating from the bench. Legislation leads to codified law, after all. This is what common sense and logic tells us.

                 

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                  Anonymous Coward, Oct 30th, 2012 @ 3:00pm

                  Re: Re: Re: Re: Re: Re: Re: Judges create laws

                  They were common law, not codified law, so they kinda existed, but not in the books.

                  Not codified by a legislature, but nonetheless the law. Case law = real law that actually applies in the real world.

                  Thus, no code, legislating from the bench. Legislation leads to codified law, after all. This is what common sense and logic tells us.

                  All three branches of government make law. Legislative codes are but one source of law. Customs make laws as well. The thing we all learned in grade school that only legislatures make laws was wrong.

                   

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    Anonymous Coward, Oct 30th, 2012 @ 7:39am

    Incentive

    So if copyright is there to create incentives to create, publicity rights must be there to create incentives for people to ... be famous?

     

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    out_of_the_blue, Oct 30th, 2012 @ 7:46am

    "it's just common law, as opposed to actual regulations"

    This is the clearest statement I've seen where you absolutely don't grasp common law. -- Simply put, the US Constitution is a mere statement of common law (by divine decree or by reason of existence, called "natural law"), and all other law is BELOW that. -- And "regulations" aren't even actual law! They're just fiats from bureaucrats and technocrats, made with bullying if that will work, and illegal force beyond that, usually violating individual rights.

     

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      Anonymous Coward, Oct 30th, 2012 @ 7:49am

      Re: "it's just common law, as opposed to actual regulations"

      This is the clearest statement I've seen where you absolutely don't grasp common law.

      So true.

       

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    Anonymous Coward, Oct 30th, 2012 @ 7:48am

    The judge quotes a bunch of courts who make really really wrong statements. For example, the Zacchini case, where a judge argued that publicity rights are "closely analogous to the goals of patent and copyright law, focusing on the right of the individual to reap the reward of his endeavors and having little to do with protecting feelings or reputation." Again, though, that's not true. The "reap the reward" part (in both cases) is the means, not the end. But the end point in both cases is entirely different. Frustrating that judges could get something so simple so wrong.

    Yikes. The Zacchini opinion wasn't written by just "a judge." It was Justice White's majority opinion for the U.S. Supreme Court. If you look at the context for the quote, Justice White was differentiating two different types of privacy torts, false light and publicity. Whereas false light seeks to protect "feelings or reputation," publicity seeks to protect the proprietary rights that people, such as Zacchini, have in their acts (such as Zacchini's human cannonball act). The right of publicity permits Zacchini to "reap the reward of his endeavors." His act was famous, and the right allowed him--and not others--to gain from that fame. This is just like copyright, which allows authors to reap the rewards of marketing their works. And it's just like trademark, that allows mark holders to reap the rewards of their goodwill in the market.

    The comparison is sound. Your whining is not. Justice White explains the comparison:
    Of course, Ohio's decision to protect petitioner's right of publicity here rests on more than a desire to compensate the performer for the time and effort invested in his act; the protection provides an economic incentive for him to make the investment required to produce a performance of interest to the public. This same consideration underlies the patent and copyright laws long enforced by this Court. As the Court stated in Mazer v. Stein, 347 U.S. 201, 219, 74 S.Ct. 460, 471, 98 L.Ed. 630 (1954):

    ‘The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’ Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.'

    These laws perhaps regard the ‘reward to the owner (as) a secondary consideration,’ United States v. Paramount Pictures, 334 U.S. 131, 158, 68 S.Ct. 915, 929, 92 L.Ed. 1260 (1948), but they were ‘intended definitely to grant valuable, enforceable rights' in order to afford greater encouragement to the production of works of benefit to the public.
    Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 576-77 (1977).

    I know you HATE that quote from Mazer v. Stein, because it focuses on authors' and inventors' rights (which you despise), but nonetheless, rewarding authors and inventors is how the copyright and patent systems in turn promote the public good. Your silly means-ends distinction, as always, misses the point. The exclusive rights of publicity, copyright, and patent are analogous because they incentivize the creation of works that benefit the public.

    Sorry, but this article is just more whining... and misunderstanding on your part.

     

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      That One Guy (profile), Oct 30th, 2012 @ 8:16am

      Copy/pasted from one of my previous comments to save time:

      A tip for future posts: it doesn't matter how much evidence you present, it doesn't matter how well reasoned your argument is, as soon as you start pulling out the ad homs, personal attacks, and/or condescending remarks, you've pretty much shot yourself in the foot, as you've demonstrated quite clearly you're not looking for a discussion, only an argument, at best.

       

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        Anonymous Coward, Oct 30th, 2012 @ 8:19am

        Re: Copy/pasted from one of my previous comments to save time:

        You'd think that the people who don't agree with Masnick, would be the ones who understand that, but what it always comes down to is a clash of egos between them and him.

         

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          Baldaur Regis (profile), Oct 30th, 2012 @ 10:52am

          Re: Re: Copy/pasted from one of my previous comments to save time:

          The "clash of egos" is merely an internal argument between themselves and the Imaginary Mike that lives in their pointy little heads.

           

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        Anonymous Coward, Oct 30th, 2012 @ 9:53am

        Re: Copy/pasted from one of my previous comments to save time:

        Mike gets ad hom attacks because he deserves them. Never has a loud-mouthed, biased, and dishonest asshole been more deserving of personal attacks. He reaps what he sows, and what he sows is extremist zealotry.

         

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          jupiterkansas (profile), Oct 30th, 2012 @ 10:38am

          Re: Re: Copy/pasted from one of my previous comments to save time:

          Generally when I have that opinion about someone, I simply ignore them and stop reading their stuff. Why would you want your life filled with things you hate?

           

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          Gary, Oct 30th, 2012 @ 5:47pm

          Re: Re: Copy/pasted from one of my previous comments to save time:

          Wow you are seriously fucked up

           

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      Pixelation, Oct 30th, 2012 @ 8:33am

      Re:

      While I do think that Copyright/ Patents are useful, sometimes, it makes me crazy when I read statements like this one; "Sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered."

      Wouldn't it be nice if the majority of the population who have given "sacrificial days" to their work would get paid for the rest of their lives plus 70yrs for those days. "Sacrificial days", is that intended to conjure an image of Christ on the cross? Oh, the humanity!

      Yes they should get paid for their work, once.

       

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        Anonymous Coward, Oct 30th, 2012 @ 8:51am

        Re: Re:

        So you think people would devote time, energy, and money into creating valuable works and inventions knowing that after they sold the first copy everyone else could just copy them? Good luck with that. You've been reading too much of the Gospel of St. Mike.

         

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          Pixelation, Oct 30th, 2012 @ 9:40am

          Re: Re: Re:

          "So you think people would devote time, energy, and money into creating valuable works and inventions knowing that after they sold the first copy everyone else could just copy them?"
          If they were paid for it, yes.

          Perhaps even if they weren't. Have you heard of the term "starving artist"?

          It's a nice fallacy that that no one would create if they didn't get copyright/patent protection.

           

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            Anonymous Coward, Oct 30th, 2012 @ 9:51am

            Re: Re: Re: Re:

            LMAO. Of course people will always create stuff. The fallacy is yours if you think that fact disproves the need for IP. Before you and Mike and the rest of the Pollyannas commit IP to the dustbin, why don't you PROVE that we can get great works without IP? Not even Pirate Mike can find more than a couple of authors who shun IP for his silly book club.

             

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              E. Zachary Knight (profile), Oct 30th, 2012 @ 10:14am

              Re: Re: Re: Re: Re:

              Wasn't the Renaissance Age a time when there were no copyrights? A time when some of the greatest works of art we have today were done for commission and on some occasions just for fun?

               

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                Anonymous Coward, Oct 30th, 2012 @ 10:48am

                Re: Re: Re: Re: Re: Re:

                Wasn't the Renaissance Age a time when there were no copyrights? A time when some of the greatest works of art we have today were done for commission and on some occasions just for fun?

                Yep, people have always created works and always will. So what's your point?

                 

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                  E. Zachary Knight (profile), Oct 30th, 2012 @ 10:58am

                  Re: Re: Re: Re: Re: Re: Re:

                  My point was in response to the AC above who asked for proof that great works would be made without IP (ie copyright). So point made I guess.

                   

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              Gwiz (profile), Oct 30th, 2012 @ 12:02pm

              Re: Re: Re: Re: Re:

              ...why don't you PROVE that we can get great works without IP?


              Look to the fashion industry for your answers. Tons of creativity happening there with almost zero IP protection:

              https://www.techdirt.com/articles/20030910/0054251.shtml

              Or the magic business, lots of new stuff being created there:

              https://www.techdirt.com/articles/20070910/224932.shtml

              Or stand-up comedy, still making people laugh without IP:

              https://www.techdirt.com/articles/20091123/0131277046.shtml

              Or the restaurant business, lots of creativity there too:

              https://www.techdirt.com/articles/20100702/11365410062.shtml


              This that enough proof for you?

               

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                Anonymous Coward, Oct 30th, 2012 @ 12:06pm

                Re: Re: Re: Re: Re: Re:

                Where's all the books, music, movies, etc.?

                 

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                  Gwiz (profile), Oct 30th, 2012 @ 12:23pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Where's all the books, music, movies, etc.?

                  Let's get rid of copyright and find out. :)


                  Seriously, you want proof that these would still be created without IP?

                  Let's start with books. In the US, prior to copyright law being enacted there were plenty of books being published.

                  Music has been around for thousands of years and copyright has only been around for about 300, so obviously we would still have people making music.

                  As for movies, look at how Hollywood got it's start. The studios moved out west to avoid Thomas Edison's stranglehold of the major patents relating to motion pictures, including that for raw film.

                  The idea that creative people wouldn't create if there wasn't intellectual property protections in place really seems silly to me when you look back upon history.

                   

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                    Anonymous Coward, Oct 30th, 2012 @ 1:03pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Let's get rid of copyright and find out. :)

                    You don't need to. People can create all of those things right now and dedicate them to the public domain, revoking their rights in them. Nothing is stopping anyone from attempting to use Mike's alternative, free business models. Get back to me when those works, based on free, are more than just the occasional blip.

                     

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                      Gwiz (profile), Oct 30th, 2012 @ 1:19pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      You don't need to. People can create all of those things right now and dedicate them to the public domain, revoking their rights in them.

                      You can't "dedicate them to the public domain". Everything created is copyrighted from the moment it's fixed in a tangible medium in the US and most other countries and lasts, well, pretty much forever. You can only choose not to enforce your copyrights.

                      Look, obviously your mind is already made up about whether art would exist without IP since you keep trying to move the goalposts in our discussion here. And that's fine. You believe whatever you want to. Personally, I know that humankind will always create for the simple joy that creating brings. History show us this.

                       

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                        Anonymous Coward, Oct 30th, 2012 @ 1:25pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        The law doesn't work that way. Anyone can abandon their copyright rights whenever they want. The government doesn't, and can't, force people to own a copyright.

                        I haven't moved the goalposts at all. I acknowledge that works will always be created, whether protected or not. We agree on that. I'm saying that to have more and better works, you need to protect them. We've had IP for a few hundred years, and humankind has advanced exponentially as a result. You want to take us back to a time when authors and inventors have to beg for money. No thanks.

                         

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                          Gwiz (profile), Oct 30th, 2012 @ 1:40pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          We agree on that. I'm saying that to have more and better works, you need to protect them. We've had IP for a few hundred years, and humankind has advanced exponentially as a result.

                          Correlation doesn't equal causation.

                          I would put forth that technology has advanced humankind and human knowledge more than IP has.


                          You want to take us back to a time when authors and inventors have to beg for money. No thanks.

                          No. Actually I'm of the copyright reform camp. Opt-in copyright with a comprehensive database of the copyright status of works going forward. 14 year term with renewal of another 14.

                          Realizing that this, of course, would involve compromise, I start at the "abolish copyright end" of the spectrum in order to reach a bargain somewhere near where I would actually like to end up.

                           

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                          Gwiz (profile), Oct 30th, 2012 @ 1:48pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          The law doesn't work that way. Anyone can abandon their copyright rights whenever they want. The government doesn't, and can't, force people to own a copyright.

                          How exactly does one dedicate their works to the public domain then? The only way I know is by a CC license, which depends upon copyright law in order to be enforced.

                          If you mean "abandon" as in "not enforcing your copyrights", then we agree, but it's still under copyright regardless.

                           

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                            Anonymous Coward, Oct 30th, 2012 @ 2:57pm

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                            How exactly does one dedicate their works to the public domain then? The only way I know is by a CC license, which depends upon copyright law in order to be enforced.

                            If you mean "abandon" as in "not enforcing your copyrights", then we agree, but it's still under copyright regardless.


                            I forget the two-part test at the moment, but it's something like intent plus overt act. Too lazy to look it up (as are you, apparently). It usually only comes up as a defense. If A sues B for infringement, B wins if it proves A abandoned the rights sued on.

                             

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                              Gwiz (profile), Oct 30th, 2012 @ 8:20pm

                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                              I forget the two-part test at the moment, but it's something like intent plus overt act. Too lazy to look it up (as are you, apparently). It usually only comes up as a defense. If A sues B for infringement, B wins if it proves A abandoned the rights sued on.

                              Ok. I know what you are talking about now. Here's a relevant passage from Wikipedia that describes it fairly well: Abandonment of Copyright

                              But, come on. How does this make any sense for a creator who wishes to gift their work to the public domain? In order to make the abandonment of my copyright *legal*, I would have to:

                              Step 1: Make my intent know with an overt act such as putting it up for download with a message: "Here's my gift to the public domain - take my stuff"

                              Step 2: Sue someone for violating the copyrights I voluntarily gave up. (huh?)

                              Step 3: Have the person I sue bring up the abandonment defense. (do I use mental telepathy for that?)

                              Step 4: Have the court declare my stuff abandoned, something that may or may not happen, regardless of my wishes, in our current legal environment.


                              Yeah. That's efficient, isn't it?

                               

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                                Anonymous Coward, Oct 30th, 2012 @ 9:49pm

                                Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                If it's a book, just print "no rights reserved - public domain" in it and done. Simple. Same way you mark something with a CC license.

                                 

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                                  Gwiz (profile), Oct 31st, 2012 @ 8:30am

                                  Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                  If it's a book, just print "no rights reserved - public domain" in it and done.

                                  Yes. Very simple. But my point is that it still won't *legally* be in the public domain. It still remains under copyright.

                                   

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                                    Anonymous Coward, Oct 31st, 2012 @ 9:56am

                                    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                    Yes. Very simple. But my point is that it still won't *legally* be in the public domain. It still remains under copyright.

                                    No. It will then legally be in the public domain. I really don't understand your argument. You seem to think that if you label something as CC-licensed, then that labeling changes the copyright status of the work that is labeled--for example, it goes from all rights reserved to some rights reserved. Well, the same thing happens when you label a work as being in the public domain. That overt act places the work in the public domain. If someone were later sued for copyright infringement for using that work, they would just point to the label that indicated the author had dedicated it to the public domain. It's really simple. You're just making it hard. Label it as CC-licensed, then it's CC-licensed. Label it as public domain, then it's public domain.

                                     

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                                      Gwiz (profile), Oct 31st, 2012 @ 10:56am

                                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                      No. It will then legally be in the public domain. I really don't understand your argument.

                                      It's really not in the public domain. That is the point I am making.

                                      From Wikipedia:
                                      Sometimes people wish for a piece of their own work to be freely available to everyone to use with no strings attached, and put the work in the public domain. This isn't very hard to do — the copyright holder merely has to make a statement that they release all rights to the work. Once this irrevocable act is complete they no longer have any power over how the work is used since it is then owned by the public as a whole.

                                      It is controversial, however, whether it is possible for a copyright holder to truly abandon the copyright of their work. Robert A. Baron argues in his essay "Making the Public Domain Public" that "because the public domain is not a legally sanctioned entity," a statement disclaiming a copyright or "granting" a work into the public domain has no legal effect whatsoever, and that the owner still retains all rights to the work not otherwise released. The owner would then have the legal right to prosecute people who use the work under the impression that it was in the public domain. It is certainly true that under some jurisdictions, it is impossible to release moral rights. For example the German Copyright Law (Urheberrechtsgesetz) prevents the transferability of copyrights in §29 UrhG so that an abdication isn't possible as well, though that is not the case in the United States. A more likely problem may be the lack of factual evidence that the owner has indeed put the work into the public domain.

                                      Basically there is no legal mechanism to revoke your copyrights. You can claim that you have given it to the public domain all you want, but that doesn't make it legally true.

                                       

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                                        Anonymous Coward, Oct 31st, 2012 @ 11:10am

                                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                        If you abandon your ownership in a work by intentionally dedicating it to the public domain signified by an overt act, then that work is legally in the public domain. Issues of proof might come up if the copyright status of the work were challenged, just like issues might come up if the garbage collector's ownership of a watch that was thrown away were challenged. That doesn't negate the fact that the ownership in the copyright was abandoned. There is no way to register your abandonment of ownership of a copyright just like there is no way to register your abandonment of ownership of the watch. So what? Legally, you have abandoned ownership in the copyright at the moment you intentionally renounce ownership as indicated by an overt act. Under your logic, you could never abandon ownership in ANY property since there could always be questions down the road. As I mentioned, you have the RIGHT to abandon your ownership. No one can FORCE you to own a copyright. Abandoned is abandoned. Sorry you don't see it, but it seems perfectly clear and obvious to me. It's some weird myth that abandoning copyright is hard. Nothing could be easier.

                                         

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                                          Gwiz (profile), Oct 31st, 2012 @ 11:24am

                                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                          It's some weird myth that abandoning copyright is hard. Nothing could be easier.

                                          No it's not easy. Greater scholars than you and I combined have wrestled with this.
                                          Some scholars of copyright law, including Lawrence Lessig, agree that it is difficult to put works in the public domain, but not impossible. The Creative Commons website, for example, released a copyright waiver in 2009 called CC0. It is important to maintain that this is a copyright waiver and not a public domain release, due to the controversy regarding the legality of abandoning a copyright on a work.

                                           

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                                            Anonymous Coward, Oct 31st, 2012 @ 2:46pm

                                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                            No it's not easy. Greater scholars than you and I combined have wrestled with this.

                                            The very wikipedia article you're quoting also says this: "Sometimes people wish for a piece of their own work to be freely available to everyone to use with no strings attached, and put the work in the public domain. This isn't very hard to do — the copyright holder merely has to make a statement that they release all rights to the work. Once this irrevocable act is complete they no longer have any power over how the work is used since it is then owned by the public as a whole."

                                            The article says that Lessig says it's difficult, but offers no citation or link. I would like to read the exact thing that he said in context. It's not provided. The article also says there's a "controversy regarding the legality of abandoning a copyright on a work" but offers no citation or link. Again, what controversy? Exactly what is the source of that claim?

                                            Sorry, but a couple FUD-filled, unsourced sentences copied from wikipedia mean NOTHING. You have not, and cannot, actually show me that there's any difficulty whatsoever in abandoning a copyright. It's just anti-copyright FUD nonsense. Sorry.

                                             

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                                              Gwiz (profile), Oct 31st, 2012 @ 6:24pm

                                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                              The very wikipedia article you're quoting also says this: "Sometimes people wish for a piece of their own work to be freely available to everyone to use with no strings attached, and put the work in the public domain. This isn't very hard to do — the copyright holder merely has to make a statement that they release all rights to the work. Once this irrevocable act is complete they no longer have any power over how the work is used since it is then owned by the public as a whole."

                                              The controversy is that you making this statement releasing your copyrights has no actual legal affect on the copyrights. There would be nothing stopping you or your heirs from suing people who have used your works, even if they believed them to be in the public domain. That's where the abandonment defense would come in. If you had actually revoked your copyrights, you or your heirs wouldn't have standing to sue in the first place.


                                              The article says that Lessig says it's difficult, but offers no citation or link. I would like to read the exact thing that he said in context. It's not provided. The article also says there's a "controversy regarding the legality of abandoning a copyright on a work" but offers no citation or link. Again, what controversy? Exactly what is the source of that claim?

                                              Not sure. I looked a bit, but couldn't find a relevant citation myself (There is a lot of Lessig words to search through out there).

                                               

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                                                Anonymous Coward, Nov 2nd, 2012 @ 1:13pm

                                                Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                                You just aren't making a lot of sense. You could argue that oral contracts aren't "real" because your heirs couldn't be stopped from suing on them. Heck, even written contracts, signed before each member of the Supreme Court, who swears on a stack of bibles that the contract is legit could be sued on.

                                                If your definition of "has no actual legal effect" = "nothing stopping you or your heirs from suing people," then you are only saying that NOTHING ON THIS EARTH has "actual legal effect." Sorry, but this is absolute 100% bullshit FUD.

                                                The fact that you cannot identify even ONE SINGLE HUMAN BEING since the dawn of copyright who had any difficultly whatsoever in abandoning a copyright should tell you something.

                                                Put down the Mike-Masnick-copyright-is-the-devil-and-I-stop-thinking-critically-whenever-it-comes-up Kool Aid. Sheesh.

                                                 

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                                          Gwiz (profile), Oct 31st, 2012 @ 11:41am

                                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                          Under your logic, you could never abandon ownership in ANY property since there could always be questions down the road.

                                          It's not a matter of questions down the road at all. It's that there is no recognized legal mechanism to actually abandon a copyright.



                                          As I mentioned, you have the RIGHT to abandon your ownership. No one can FORCE you to own a copyright. Abandoned is abandoned.

                                          You are right, no one can force you to own a copyright, but the only alternative that currently exists is to transfer that copyright to another entity.

                                          You can't just make the copyright magically disappear into thin air, there's no legal way to do that with our current laws.

                                           

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                                    Anonymous Coward, Oct 31st, 2012 @ 10:02am

                                    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                    The key is to understand that you can't be forced to own property. You have the right to abandon or disown something (this right is at least two thousand years old; the Romans called it "abusus"). If you decide that you don't want to own something, you can renounce your ownership. Say you own a watch, and you decide that you don't want to own it anymore. What can you do? You can sell it, which transfers title. Or you can throw it away. If you throw that watch in the trash, on purpose, then you have the intent and the overt act. If the trash collector sees the watch and takes it, it's his. You renounced your title to it. If you changed your mind and tried to get the watch back, the trash collector could point to your intent and overt act in defense--and he would win. It's the same thing with copyright. You don't have to own it. You can renounce your rights in it and dedicate it to the public domain quite easily.

                                     

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                                      Gwiz (profile), Oct 31st, 2012 @ 11:09am

                                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                      It's the same thing with copyright. You don't have to own it. You can renounce your rights in it and dedicate it to the public domain quite easily.

                                      What I'm trying to explain to you is that you can renounce your copyrights all you want, but it still doesn't mean you have legally renounced your rights. There is no mechanism in copyright to do that legally. Even if you renounce your rights and abandon your work, you still hold the rights anyways. Even with CCO license, where you waive all copyrights, you are still legally the rights holder, you are simply agreeing (with a legally binding document) not to enforce them.

                                      I understand what you are saying about abandoning property rights in general, but I have found nothing in copyright law that says you can explicitly do that. Have you?

                                       

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                                      Gwiz (profile), Oct 31st, 2012 @ 12:00pm

                                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                                      This whole discussion is one reason why I advocate going back to opt-in copyright.

                                      Prior to the Copyright Act of 1976 the default was that works went into the public domain. You had to proactively register the works to gain copyright protection.

                                      With the 1976 Act Congress made all works copyrighted from the moment they are fixed to a tangible medium and left no way for works to go into the public domain until after the copyright term ended, which of course keeps getting extended out further and further. It's Congress who left us without a way to place works directly into the public domain.

                                       

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                          Anonymous Coward, Oct 30th, 2012 @ 1:58pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          Authors and inventors will always have to 'beg for money.' People aren't just going to walk up and buy stuff, you know. That's what advertising is: begging, enticement. This 'begging' argument people make always makes me die a little more inside.

                           

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                          Rikuo (profile), Oct 30th, 2012 @ 2:26pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          Question...what copyright rights do copyright holders have?

                          Copyright doesn't grant rights.

                          It instead takes away rights from everyone else.

                           

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                            Anonymous Coward, Oct 30th, 2012 @ 3:04pm

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                            It instead takes away rights from everyone else.

                            Yep, just like giving you the right not to be punched in the face takes away my right to punch you in the face. So what?

                             

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                  Gwiz (profile), Oct 30th, 2012 @ 12:38pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Just found another interesting gem. From Wikipedia's Copyright Law of the US page:
                  The U.S. Congress first exercised its power to enact copyright legislation with the Copyright Act of 1790. The Act secured an author the exclusive right to publish and vend "maps, charts and books" for a term of 14 years, with the right of renewal for one additional 14 year term if the author was still alive. The act did not regulate other kinds of writings, such as musical compositions or newspapers and specifically noted that it did not prohibit copying the works of foreign authors. The vast majority of writings were never registered — between 1790 and 1799, of approximately 13,000 titles published in the United States, only 556 works were registered.

                  Think about that for a minute.

                  For the first nine years of copyright law in the US less than 5% of authors even bothered to register their works in order to get copyright protection.

                   

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                    Anonymous Coward, Oct 30th, 2012 @ 12:59pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    That's because the cost of copying made it prohibitive to do so. Technology has made copying trivially easier than it was in 1790.

                     

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          Rikuo (profile), Oct 30th, 2012 @ 11:24am

          Re: Re: Re:

          "So you think people would devote time, energy, and money into creating valuable works and inventions knowing that after they sold the first copy everyone else could just copy them? Good luck with that. You've been reading too much of the Gospel of St. Mike."

          It's worked for all of human history except for the last 300 years...

           

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            Anonymous Coward, Oct 30th, 2012 @ 12:10pm

            Re: Re: Re: Re:

            Considering all the advances in learning in the past 300 years, seems like we're way better off now. Keep drinking Mike's Kool-Aid. Mike can't even find more than a couple authors for his own book club. Where's all the wonderful books being incentivized by Free?

             

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              Rikuo (profile), Oct 30th, 2012 @ 2:23pm

              Re: Re: Re: Re: Re:

              How about the Humble Bundle ebook collection for starters? We've got some big name authors on there. They don't care how much you pay. In fact, they say its cool if you instead get a torrent if you don't feel like paying for it.

               

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    Lord Binky, Oct 30th, 2012 @ 8:04am

    The judges thought process is fairly straightforward....

    So the judge thought it's absurd to think that anyone reasonably believes Einstein or whoever owns his 'Einstein-ness' endoresed the Ad.

    Since the time he died 55 years ago, at some point since then the general view of the public changed to believe the deceased continues to have views on anything. So OBVIOUSLY dead + 70 years is too long, because the public view changed at some point before death + 55 years.

    So taking baby steps, the judge decides death + 50 would be good middle ground between death +0 and death + 70 for an event that occured at some point before death + 55.

    ... Funny thing is I remember a study done that ~30 years from major events the youth are significantly less aware of that event even happening.

    If there was ever a starting point for the any of the arbitrary rights time, I would think research saying that about 30 years after the event no new people gives a rats (body part of choice) is a good starting point. It is even less arbitrary than a person's (who is no longer of this world) continued rights in this world.

     

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