What Public Domain? Why A Letter Written In 1755 Is Still Covered By US Copyright Law

from the stamping-out-the-public-domain dept

If you ever done any research about the public domain, you've probably come across this awesome chart from my alma mater, Cornell, that tries to explain how you can figure out if something is or is not in the public domain in the US. I've relied on the chart many times (and linked to it a bunch as well). Now, Peter Hirtle, one of the people behind that chart, has an equally fantastic and frustrating article detailing how difficult it is to determine if something is actually in the public domain (and the fact that so little enters the public domain in the US any more). Hirtle kicks it off by recognizing the importance of the public domain, including the fact (often ignored, it seems) that all copyrighted works must enter the public domain at some point. He then goes into a series of seven reasons why it's so incredibly, ridiculously difficult to ever figure out if something is in the public domain.

A few years back, we wrote about a fantastic research report that suggested for all of the claims that the song "Happy Birthday" remains covered by copyright, there was a lot of evidence that it was still in the public domain. After all, the music is from the 1800s and the lyrics were published in books starting in 1912. And, of course, as the handy dandy chart notes, works published prior to 1923 aren't supposed to be subject to copyright. But.. it's not always that simple:
Robert Brauneis notes that the lyrics to “Happy Birthday” were published in 1912 in The Beginners’ Book of Songs and again in 1915 in The Golden Book of Favorite Songs. (The music is much older.) Yet according to the current owners of the presumed copyright in “Happy Birthday,” these early publications were unauthorized. They argue that the first authorized publication of the lyrics to “Happy Birthday” occurred in 1935 and copyright runs from that date. Digitizing either the 1912 or 1915 volumes or singing the lyrics to “Happy Birthday” as found in the books would therefore infringe on the copyright first secured in 1935.
Yes, you read that right. If you digitized books from 1912, you could infringe on a copyright from 1935. That is not a functional system.

But that's not the only crazy case. Hirtle highlights another example of what he believes may be the oldest work still covered by US copyright... and it's from 1755:
Probably the oldest work still protected by copyright in the U.S. is a letter from John Adams to Nathan Webb written on Sept. 1, 1755. Copyright in the Adams material was transferred to the Massachusetts Historical Society (MHS) in 1956. In that same year the MHS published a microfilm edition of the correspondence and registered the copyright with the Copyright Office. Copyright was renewed in 1984, which means that copyright in the Adams letter will expire on Jan. 1, 2052, almost 300 years after it was written.
There are a number of other crazy examples as well. Take, for example, arguments over whether or not a work is "published" or "unpublished." This can matter, especially for older works, since there were different copyright rules depending on the publishing status of the work. But, the definition of "publication" isn't always clear, especially for pre-1978 works (see the example above). And that can create bizarre examples like the one below from an actual court case:
An allegedly infringed work reportedly has a title page stating that it was published. Furthermore, the defendants also claim that the work was distributed to more than 55,000 people. Nevertheless, the work is registered as an unpublished work with the Copyright Office. This is because the work was never offered to the public; instead, it was only to senior officials and leaders of the Mormon Church.
Similarly, he notes that merely broadcasting a TV show wasn't considered "publishing." So TV shows like the first episode of Star Trek don't have their copyright clock start until nearly a dozen years after it was first broadcast, because that's the first time it was "offered for sale" rather than just broadcast.

Reading through all of the examples, it's a great lesson in how screwed up copyright law is today, especially with regards to the public domain -- a sadly neglected part of American culture.


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  1.  
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    Ninja (profile), Sep 19th, 2012 @ 10:02am

    Yes, you read that right. If you digitized books from 1912, you could infringe on a copyright from 1935. That is not a functional system.

    Playing with words much eh, Pirate Mike? It's obvious they used their time machines to secure their copyrights. How do you think "Back to the Future" series was made? Also, it's the Law! Law!

    /aj

    In a more serious comment can this system be fixed? In my opinion we will need to scrap it and start over...

     

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  2.  
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    weneedhelp (profile), Sep 19th, 2012 @ 10:02am

    The avreage joe (not our not so average joe)

    This is why people ignore it. It is so f'in convoluted to figure out what can and cant be used, that in my case I just say F it, and use it. Of course in my case it can get my account suspended, and has 2 other times.

    I dont care. I dont care you didnt like my use of Cars by Gary Neuman, or you blocked my audio for having bells toll that sound like AC/DC's Hells Bells.

    I DOOONT GIVE A FUUUUUUUK!!!!
    Ah that felt good.

     

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  3.  
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    Anonymous Coward, Sep 19th, 2012 @ 10:09am

    Re:

    ...can this system be fixed?

    Here's how I would do it:

    107 . Limitations on exclusive rights: Fair use
    Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work is not an infringement of copyright.
    All uses of a copyrighted work are fair.

     

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    ChurchHatesTucker (profile), Sep 19th, 2012 @ 10:10am

    Huh?

    So TV shows like the first episode of Star Trek don't have their copyright clock start until nearly a dozen years after it was first broadcast, because that's the first time it was "offered for sale" rather than just broadcast.

    Wasn't it sold to the network back in the sixties?

     

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  5.  
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    Larry Downes, Sep 19th, 2012 @ 10:11am

    Pre-1978 CR was a function of its time

    The Adams letter problem wouldn't happen after 1978, as you note. Before the 1976 Act, copyright didn't start to run until you formally registered with the Library of Congress, and so long as you never published the work (e.g., J.D. Salinger's papers hiding in a vault somewhere) you could indefinitely defer the copyright clock from starting to run.

    But the 1976 Act did away with most of the formalities of registration, and CR now attaches at the instant of creation, that is, for works entitled to CR in the first place.

    It's not the system that's broken. It's ALL of the different systems we've tried over the centuries as technology has challenged the old ones that are broken--including the interaction of all the old ones with each other.

     

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    The Mighty Buzzard (profile), Sep 19th, 2012 @ 10:13am

    Re: The avreage joe (not our not so average joe)

    Yeah, I'm that way with taxes too.

     

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  7.  
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    Ninja (profile), Sep 19th, 2012 @ 10:14am

    Re: The avreage joe (not our not so average joe)

    My brain shut itself down preemptively when I started reading the chart to avoid collapse of sanity and meltdown of core areas.

    I think we need some sort of "Yellow pages" for copyrighted works to easily tell if a work is copyrighted, which type of copyright and who holds it for contact. Sure you'd need a Google-like infrastructure to run such system based on current laws but that's another issue.

    Also, VPN FTW!

     

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    Paul L (profile), Sep 19th, 2012 @ 10:18am

    Serious Question

    Regarding this part of the article:
    Similarly, he notes that merely broadcasting a TV show wasn't considered "publishing." So TV shows like the first episode of Star Trek don't have their copyright clock start until nearly a dozen years after it was first broadcast, because that's the first time it was "offered for sale" rather than just broadcast.
    Does this mean that there is no effective copyright on a TV show UNLESS it's offered for sale to the public? IE: If a show airs on TV tonight but is not offered for sale, can it be copied because the copyright clock hasn't started yet?

     

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    Thomas, Sep 19th, 2012 @ 10:19am

    Re:

    Just put a reasonable limit on length of time and that fixes 90% of the problems (even something semi-ridiculous like 50 years would be better than what we have now).

     

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    Anonymous Coward, Sep 19th, 2012 @ 10:21am

    Re: Serious Question

    Perhaps previously, but as of 1978, copyright is automatically assigned at the moment of fixture.

     

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    Anonymous Coward, Sep 19th, 2012 @ 10:23am

    maybe if you freetards didn't have time machines this wouldn't happen

     

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    Spaceboy (profile), Sep 19th, 2012 @ 10:36am

    This post infringes on a post I am going to make in 2017.

     

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    Jeremy Lyman (profile), Sep 19th, 2012 @ 10:39am

    Everyone knows it's not really published until you put in a space capsule and fire it at Mars.

     

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    John Fenderson (profile), Sep 19th, 2012 @ 10:39am

    Re: Pre-1978 CR was a function of its time

    But doing away with registration has made it even more difficult to determine the copyright status of anything. I strongly feel that the registration requirement should be brought back so that a central catalog of copyrighted works can be maintained. This would make it much, much easier to determine a copyright's validity.

     

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    weneedhelp (profile), Sep 19th, 2012 @ 10:42am

    Re:

    Which infringed on my post in 2112.

     

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  16.  
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    Another AC, Sep 19th, 2012 @ 10:45am

    Re: Huh?

    It wasn't "sold". Money was paid in exchange for providing the show to broadcast. Maybe in your crazy black-is-white up-is-down world the exchange of money for goods or services is called a "sale", but in here in reality we call it... uh... hmmm.

     

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    Chosen Reject (profile), Sep 19th, 2012 @ 10:50am

    Re: Re: The avreage joe (not our not so average joe)

    I thought about taxes as well. It holds true in some cases with taxes, but taxes are different.

    First, where it holds true (i.e., people find it convoluted so they ignore it). How many people do you see charging sales tax when they sell something on craigslist? I know roughly what sales tax is in my area and for what items, but for any given item and exactly what it is on my street I couldn't tell you. If I sell something on craigslist, sales tax isn't going to be collected. The person I sell it to isn't going to pay it either. It's convoluted, so it gets ignored.

    Where taxes are different in this case though are that finding an accountant to do your taxes is easy, and relatively cheap. Often, they take their money from the returns you get, and most people treat their returns more like bonuses rather than getting back the money they overspent.

    And even if you did your taxes yourself, making sure you don't underpay is relatively easy for the vast majority of people. Making sure you don't overpay is a lot more complicated. A lot of people overpay, because they ignore the complicated stuff.

    On the other hand, finding a copyright lawyer to determine if a work is in the public domain is not easy or cheap. And just because the lawyer might say nay, doesn't mean the person/group/entity that thinks they hold a valid copyright will let you get away without a lawsuit. Several people have determined that Steamboat Willy is in the public domain. Yet you don't see that on Netflix because they know Disney would sue them. Even if Netflix were to win, that lawsuit would cost a lot of money. The sad reality is, too often the only sure way to know something is in the public domain is a lawsuit.

     

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    Josh in CharlotteNC (profile), Sep 19th, 2012 @ 11:01am

    Re: Re: The avreage joe (not our not so average joe)

    I think we need some sort of "Yellow pages" for copyrighted works to easily tell if a work is copyrighted, which type of copyright and who holds it for contact.

    We had just such a system prior to 1976 (in the US).

    Wait, I just thought of something.

    There was almost no file sharing happening in 1976! No hordes of internet pirates wantonly stealing the precious intellectual property! There was no Pirate Mike back then, either. No Pirate Party! No Pirate Bay! Quick, call up our lobbyists, we can solve piracy by changing the law back to what we had before 1976!

     

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  19.  
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    Richard (profile), Sep 19th, 2012 @ 11:02am

    Re: Re: Re: The avreage joe (not our not so average joe)

    Also taxes go to arguably useful causes like education, policing and (in civilised countries) universal healthcare.

    The proceeds of copyright - on the other hand - go straight into private pockets.

     

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  20.  
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    The eejit (profile), Sep 19th, 2012 @ 11:09am

    Re: Re: Pre-1978 CR was a function of its time

    So make the rights last, say, ten months, with a five-month extension. No more issues like Star Wars getting its kajillionth re-re-rerelease.

     

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  21.  
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    The eejit (profile), Sep 19th, 2012 @ 11:13am

    Re: Re:

    Which infringed on a post I made in the Sacking of Golgotha.

     

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  22.  
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    velox (profile), Sep 19th, 2012 @ 11:13am

    Re: The avreage joe (not our not so average joe)

    " so f'in convoluted to figure out" = job security for f'in Esq's

     

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  23.  
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    Anonymous Coward, Sep 19th, 2012 @ 11:15am

    Re: Re:

    What are you thinking? A year? 6 months?

     

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    The Mighty Buzzard (profile), Sep 19th, 2012 @ 11:15am

    Re: Re: Re: Re: The avreage joe (not our not so average joe)

    True but not a terribly good argument right now. Private pockets are far more efficient at moving the economy than public coffers.

     

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  25.  
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    John Doe, Sep 19th, 2012 @ 11:18am

    Re: Re:

    I think 50 years is far too long. I think 10 years is plenty. There are probably studies around that show the economic life of most music, books and movies and IMHO, copyright should be just after the avg economic life. Sure, books sell 100 years later, but I bet more than 90% of the money is made in the first couple years. When the life of the original has run its course, it should be opened up to others to find ways to extend it. 100 people trying to find a way to extend the life of an item is far better than 1 person trying to extend its life. Or even worse, trying to lock it away from everyone.

     

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  26.  
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    Anonymous Coward, Sep 19th, 2012 @ 11:19am

    Re: Re: Re: Pre-1978 CR was a function of its time

    Or more of those issues, I imagine adding new material or making a different cut would effectively be a new work and carry a new copyright period. Sure it might technically only apply to the bits that are different but we know how expansive that kind of thing can be like with the Wizard of Oz book and characters are public domain, but the movie isn't and all sorts of hilarious confusion follows.

     

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  27.  
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    Seegras (profile), Sep 19th, 2012 @ 11:28am

    Re: Re: Re:

    The original length was 14 years, I consider that reasonable.

    Plus, anything whose author is dead cannot be subject to copyright. So you can't claim copyright on letters from 1755 YOU DID NOT WRITE.

     

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  28.  
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    Anonymous Coward, Sep 19th, 2012 @ 11:30am

    Re: Re: Pre-1978 CR was a function of its time

    "I strongly feel that the registration requirement should be brought back so that a central catalog of copyrighted works can be maintained. This would make it much, much easier to determine a copyright's validity."

    But, that's WORK!
    You'd have to pay someone to do the paperwork and file the registrations!
    That costs MONEY!
    You think corporations want to waste MONEY on something like that?

     

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  29.  
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    MrWilson, Sep 19th, 2012 @ 11:31am

    Re: Re: Re:

    I would make copyright last 10 years with a 5 year extension upon payment of a registration fee. I would make copyright non-transferable from the original creator, meaning that corporations cannot own copyrights, only authors, musicians, etc.

    That would remove the need for corporations to try to extend copyright durations. They'd actually fight to have them reduced so that they could publish works without having to worry about royalties. Then again, all publishing companies would be publishing 10 - 15 year old material or else paying authors for the non-exclusive right to publish their work, which would make them compete with other publishers by having to offer the best terms.

     

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  30.  
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    John Doe, Sep 19th, 2012 @ 11:35am

    Re: Re: Re: Re:

    Yes, I agree completely.

     

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  31.  
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    Ninja (profile), Sep 19th, 2012 @ 11:42am

    Re: Re: Re: Re:

    That. A million times that. I'd go for 10 years plus 10 with a reasonable fee based on the raw revenue (no Hollywood accounting allowed!). Still, very good idea Mr Wilson!

     

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  32.  
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    Anonymous Coward, Sep 19th, 2012 @ 11:53am

    Re: Re: Re: Re:

    I definitely agree with the non-transference clause, except I would allow an author to disavow a copyright completely if so desired. Call it transference to the public, if you will; but either the author holds the copyright or no one does.
    But I must disagree with the 5-year extension, because that creates two different classes of work from the same time period (as it has done for those from between 1923 and 1949), and to make that workable essentially mandates use of a copyright registry; whereas without the extension law, all one must do is elementary arithmetic.

     

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    AndyD273 (profile), Sep 19th, 2012 @ 11:56am

    Re: Re: Pre-1978 CR was a function of its time

    Just curious, what happens if they never register it?

     

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  34.  
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    Anonymous Coward, Sep 19th, 2012 @ 11:58am

    Re: Re: Re: Re:

    I thought copy rights were to be secured for "the author." When the author dies, copyright should end, period.

     

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    Fickelbra (profile), Sep 19th, 2012 @ 12:09pm

    Re: Re: Re:

    Good ol' Golgotha. How is the place?

     

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  36.  
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    Dave Nelson, Sep 19th, 2012 @ 12:12pm

    It's Outright Theft!

    Copywrong law, as it exists, is a blatant and successful scheme to steal from us, the American Public, virtually our entire literary heritage. These are the same people that cry foul when we try to fix or circumvent that law. Obviously, we don't have enough money to sway them, or their pet Congresscritters to relax the "law".

     

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    RKElGuapo, Sep 19th, 2012 @ 12:14pm

    Re: Re:

    I think Rush did. It will occur somewhere in the vicinity of the Temple of Syrinx.

     

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    The eejit (profile), Sep 19th, 2012 @ 12:21pm

    Re: Re: Re: Re: Pre-1978 CR was a function of its time

    When I say 15 months maximum, that's exactly what I mean: no remasters, no minor edits fro "all-new" footage, that's it. IT's not a wholly new work.

     

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  39.  
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    The eejit (profile), Sep 19th, 2012 @ 12:24pm

    Re: Re: Re: Re:

    A bit on fire, really. All those imaginary property laws.

     

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  40.  
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    NoAC, Sep 19th, 2012 @ 12:30pm

    Re: Re:

    Some reasonable limits on rights transferability from individual creators to corporations would help too:

    . Rights transfer from the creator to a corporation can only be a time-limited lease of a maximum of 3-5 years, not permanently transferred. Corporations would need to (im)prove their added value as a continuous enabler and justify their share if they want renewal.

    . Works out of print & not for sale for more than 1 year automatically go back to the actual creator from copyright-holding corporations

    Shifting control back to the actual creators would do a lot to put a halt to copyright-holding corporate entities current quest of securing themselves perpetual property on others work they may or may not have helped see the day of light initially.

    These corporations would finally be put to the service of the creators in the process, which admittedly would be a huge cultural shift to them so much they consider owning artists works...

     

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    That One Guy (profile), Sep 19th, 2012 @ 12:38pm

    Rather telling that the usual trolls seem to be avoiding posting on this one at all, even they are struggling to come up with an argument do defend this level of absurdity it seems.

    Still, I look forward to the inevitable showing of one or more of them, and the absolutely amazing distortions of logic, sanity, and reality as it is they will employ in their attempts to make this insanity seem 'right'.

     

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  42.  
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    Ed C., Sep 19th, 2012 @ 12:49pm

    Re: Re: Re: Re: Re:

    Term OR life is a bad option, because then we run into the same situation of determining A: the original author(s) B: when the last author died. That said, what I take issue with is someone else claiming copyright over something they did not author or have authority from the author. I don't really have a problem with a fixed term extending beyond death, as long as the term wasn't extended later, but the ability to copyright or assign copyright should end with the author.

     

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  43.  
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    Rikuo (profile), Sep 19th, 2012 @ 1:08pm

    Re:

    I can understand Average_Joe staying away, but bob? IIRC he was on that article about publishers tripling ebook prices to libraries, and spewing forth an ungodly amount of hatred for libraries (although I honestly think bob doesn't actually hate libraries, he just saw the buzzwords in the article like publisher and DRM, and swung in on a vine screeching at the top of his voice without thinking first of what he was trying to say, like a chimp high on drug-laced bananas, simply so he could argue back at Mike. He actually called libraries rusty and un-internet, whatever they mean).

     

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    Anonymous Coward, Sep 19th, 2012 @ 1:15pm

    That's one reason why an opt out system isn't good, it becomes hard to trace when something was made.

     

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  45.  
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    Ed C., Sep 19th, 2012 @ 1:28pm

    ITS ALL OURS DAMN IT!

    Come on Blue Beard Mikey Mouse Masnick, stop trying to tell us what we cant do with our lawful property. We bought the properties and the laws, so theyre lawfully ours. The law is the law, damn it. Stop trying to steal it from us! If it wasnt for the need to continually protect our property from you jolly roger waving, free-culture pirates we all could afford cybernetic clones. We made something once years ago, so we have the right to immortality. Once we have what is rightfully ours, we will be eternal and so will our property. Then nothing can stop us! Resistance is FUTILE!

     

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  46.  
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    Ed C., Sep 19th, 2012 @ 1:30pm

    Re: ITS ALL OURS DAMN IT!

    And now you know how the Borg began.

     

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  47.  
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    Anonymous Coward, Sep 19th, 2012 @ 1:32pm

    Re: Re: Re: Re:

    I would redefine copyright into more pieces:
    - The "creation rights", is a non-transferable right to choose who gets publishing rights and enforcement rights.

    - The "right to publish", which is transferable and only deals with the economic side of publishing. The owner(s) of this right are completely in the hands of the owner of "creation rights" and the right to appoint "right to publish" is nontransferable.

    - The "right to publisher enforcement", which is a right usually granted to a publisher and later it can be transferred to an overall guardian and entails right to write copyright notices online, helping police in cases of physical copyright breaches and so on (Separate from right to publish because of ensurance and other risk-pooling business models).

    - The "Secondary intellectual rights" are the abilities to trademark names or patent content. It is only transferred from the creator of the content in explicitly stated cases and only is a short period after first publication.

    - "Third party creation rights" is the rights of those participating in the creation, but not publisher and creator. It includes but are not limited to economic interests, information about the status of the other rights or any changes to those and power in appointing the ownership structure of "creation rights" before the "right to publish" and "right to enforcement" if it is a question. (to create a reasonable way to appoint orphaned works)

    Exceptions are appointed to specific parts of the total rights according to reasonable criteria.

    By splitting copyright up into smaller pieces of the total copyright you can start to make a much deeper system. The existing system can be easily fitted into this system.
    It will make it a lot easier for people to advocate reasonable limitations to the system without getting hit by nonsense general arguments and too general numbers since the relative value of each part is so much more specific and demand a far more targeted approach to measure!

     

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  48.  
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    silverscarcat (profile), Sep 19th, 2012 @ 1:39pm

    Re: Re: Re: Re:

    "Plus, anything whose author is dead cannot be subject to copyright."

    I'd like to make exceptions for television series like Star Trek: The Next Generation.

    Gene Roddenberry died before it was complete, but left enough notes for them to finish it.

    I think, in that case, the series should be under his copyright protection for a few more years after it ends at least.

    That would be the "Roddenberry clause" that I would have for Copyright if I wrote it up.

    Other than that, screw the hippies.

     

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  49.  
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    Mr IP, Sep 19th, 2012 @ 1:42pm

    Copyrights are reasonable, if you understand what is protected.

    Yes, it can be difficult to determine the date of expiration for a copyright, but importantly:

    Copyrights cover only works of authorship. Copying a work in existence does not create a copyright. The publication of the words to the "happy birthday" song in 1935 in a book did not create a copyright in those words, but rather only a copyright in the particular visual arrangement of the words on the page.

    If Mr. Masnick realized this fact, he would not have such anxiety.

     

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  50.  
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    Anonymous Coward, Sep 19th, 2012 @ 2:05pm

    Re: Re: Re: Re: Re:

    Why? What is a dead Gene Roddenberry going to do with a copyright anyway?

     

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  51.  
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    Dave Nelson, Sep 19th, 2012 @ 2:06pm

    Re: Copyrights are reasonable, if you understand what is protected.

    I may be wrong, but it seems to me that both the courts and plaintiff's council are misinterpreting this rule.

     

    reply to this | link to this | view in thread ]

  52.  
    identicon
    Anonymous Coward, Sep 19th, 2012 @ 2:39pm

    Re: Re: Re: Re: Re:

    Copyright should be 10 years (more than enough time for the creator to profit from their efforts), no extensions and non-transferable (except to transfer a work to the public domain prior to end of copyright). Registration with the Library of Congress must be mandatory prior to publication for the ability to enforce copyrights. Simple enough. There's no need to split up any part of it. Publication "rights" would be merely contractual agreements between the creator(s) and the publisher.
    Enforcement should not be transferable either. As the publisher under this system would only be providing a service to the creator(s), they have no "rights" to enforce. Only the creator(s) should have the "right" to enforce their copyright.

    The Trademark system and the patent system have nothing to do with copyrights. Therefore no need for such clauses in Copyright law.

     

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  53.  
    identicon
    Anonymous Coward, Sep 19th, 2012 @ 3:22pm

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

    I accept the elegance of the model you propose, but it is never, ever gonna fly with publishing industries and thus is only a dream.

    The categories are mere suggestions and does not necessarily constitute the package. Trademark and Patent systems are used by content creaters to avoid others taking their names or creations. It is also to have something to show for their research in trying to come up with a name for places and avoid lawsuits for "unlicensed product placement" in especially audiovisual content. I realize that your suggestion would make it far less of an issue.

    What I am getting at is the need for a more diverse discussion of copyright as to avoid the publishing industry just saying "It is us or no copyright, take it or leave it sister politician!". By stratifying the copyright you force them to fight on more fronts to keep their currently very excessive rights. I think it is a necessity for us to be able to specifically define the problems and eventually force a more reasonable debate about it.

     

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  54.  
    icon
    That One Guy (profile), Sep 19th, 2012 @ 3:31pm

    Re: Re:

    Actually, thinking about it, it's no surprise that to the trolls that frequent this site libraries would be such targets of hatred and disgust.

    Think about it: a library pays once for a copy of a book/movie/CD, and then a whole bunch of people are able to check it out without each having to also pay. To a troll, the idea of sharing without money changing hands is an absolute abomination, so it's no wonder libraries catch so much flak from them.

     

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  55.  
    icon
    That One Guy (profile), Sep 19th, 2012 @ 3:34pm

    Re: Re: Copyrights are reasonable, if you understand what is protected.

    No, sadly you aren't. Restaurants are no longer willing to sing 'happy birthday' in public for the simple fact that if they do so, and the wrong person hears about it, they will get sued, despite what the person above seems to be claiming.

     

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  56.  
    icon
    John Fenderson (profile), Sep 19th, 2012 @ 4:23pm

    Re: Re: Re: Pre-1978 CR was a function of its time

    The way it used to work seems fine to me: if you don't register it, it isn't copyrighted.

     

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  57.  
    identicon
    Dave Nelson, Sep 19th, 2012 @ 4:28pm

    Re: Re: Re: Copyrights are reasonable, if you understand what is protected.

    Then, maybe it's time for the Supremes to step in and clarify the law.

     

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  58.  
    identicon
    Mr. IP, Sep 19th, 2012 @ 4:44pm

    Re: Re: Re: Copyrights are reasonable, if you understand what is protected.

    There are penalties for filing law suits on false or frivolous grounds, including collecting attorneys fees. The plaintiff would have to show that they held the copyrights in the song, which is a premise easily rebutted if the song was published prior to 1935 as the article claims.

    If memory serves, the damages for a copyright violation are in the hundreds of dollars per violation. The attorneys fees are much more concerning.

    If a restaurant chain makes decisions based on rumor, bad law and insubstantial threats, it's their loss...

     

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  59.  
    icon
    art guerrilla (profile), Sep 19th, 2012 @ 5:19pm

    Re: Re: Re: Re: Re:

    (parasitizing on your post)

    um, sounds great in theory, wilson...
    only thing is -and this is just a minor detail- you would essentially have to dismantle the present kapitalist imperialist system to diminish the power of those infinitely rich, totally amoral, and completely fictitious 'humans' called korporations...

    i'd sure like to try, but ain't gonna happen until Empire collapses...

    art guerrilla
    aka ann archy
    eof

     

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  60.  
    identicon
    Anonymous Coward, Sep 19th, 2012 @ 5:52pm

    Re: Copyrights are reasonable, if you understand what is protected.

    Mr IP, these issues hinge on the meaning of "publication," not copyright in layout (or similar layers). I suggest taking a look at Hirtle's qualifications and at the Robert Brauneis article. See these links before you so glibly dismiss their concerns.

     

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  61.  
    icon
    Ninja (profile), Sep 19th, 2012 @ 6:17pm

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

    Socialism and Capitalism would be great systems if it wasn't for humanity inherent.... never mind...

     

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  62.  
    icon
    Ninja (profile), Sep 19th, 2012 @ 6:19pm

    Re: Re: Re: Re: Re:

    Wtf are you ppl smoking? I want some =/

     

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  63.  
    identicon
    Mr. IP, Sep 19th, 2012 @ 6:43pm

    Re: Re: Copyrights are reasonable, if you understand what is protected.

    "(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."

    So reads 17 U.S.C. 102.

    There are no "issues" where there is no copyright to begin with. Publication of something in the public domain is not distribution of something original, nor is it a work of authorship. I'll consider the law more authoritative than this article's representations of Mr. Hurtle, thank you.

     

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  64.  
    identicon
    Zem, Sep 19th, 2012 @ 7:13pm

    I know how to fix all this nonsense

    I have a solution for both copyright and patents. Its simple.

    All copyrights and patents have an assigned fixed value. Anyone can choose to pay off part of this fixed value. When that value has been reached the copyright/patent becomes public domain and the money collected goes to the rights holder.

    If a rights holder wants to prevent it going to public domain they can wind back the payment on a 2 for 1 basis. Giving the payment contributor their money back and an equal amount to the government authority in charge of the scheme (to help pay for the administration cost).

     

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  65.  
    identicon
    Mr. IP, Sep 19th, 2012 @ 7:20pm

    Re: Re: Re: Copyrights are reasonable, if you understand what is protected.

    To be fair, the 1935 claim on the birthday song would apparently have to conform to the 1909 act: http://www.copyright.gov/history/1909act.pdf

    Although reading that act takes a bit of concentration, it seems clear that copyrights originate in an act of an author, who would be the original claimant of a copyright. I don't think the present law is in conflict.

    For the birthday song, the true question seems to me to be: what did the 1935 publisher actually author?

     

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  66.  
    identicon
    Anonymous Coward, Sep 19th, 2012 @ 7:42pm

    Alas, to read your post requires to some extent that you be ignorant of the laws of copyright.

    The original letter from 1755 isn't copyright, you know it. The edition produced on microfilm edition of it is.

    You could in theory take the oldest writings of man, and in digitizing them and publishing them, get a copyright - on that publication.

    It is unlikely that you would actually be able to enforce the copyright against people using the original or material sources in other manners, however.

    Nothing like a little FUD, right Mike? Nothing like not telling all the truth, right?

     

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  67.  
    icon
    Dude (profile), Sep 19th, 2012 @ 9:13pm

    I've actually had Intellectual Property Law

    I'm a paralegal who has actually taken Intellectual Property Law courses from top ABA attorneys, which consists of the disciplines of copyright, patents, trademarks, and trade secrets. The author of this article is way off base on copyright law. A copyright automatically exists when something is put into tangible form. Contrary to popular belief it DOES NOT have to be published, bought, sold, or submitted to the Library of Congress for copyright to exist. Copyright exists for the life of the author plus 80 years. That's it. After that, it is in the public domain. There is no letter from the 1700's that is not in the public domain. If you took that letter and incorporated it in some book on letters from the 1700's, then that book gets its own copyright, but the individual letter is in the public domain and is free for anyone to copy. Likewise, no one can copyright facts. That is why anyone can publish NFL game stats and scores and schedules. Those are FACTS, and facts don't belong to anyone.

     

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  68.  
    icon
    Verbatiam (profile), Sep 20th, 2012 @ 5:42am

    Re: Huh?

    Maybe it dosnt count because it wasnt offered to the public

     

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  69.  
    icon
    Marcel de Jong (profile), Sep 20th, 2012 @ 5:52am

    Similarly, he notes that merely broadcasting a TV show wasn't considered "publishing."


    So using this logic, anything that's aired but hasn't been offered for sale anywhere yet, isn't covered by copyright, because it's not published yet?
    I suddenly feel a lot less guilty over downloading tv shows.

    And if someone were to put clips from newscasts on youtube, that someone wouldn't be breaking copyright law either, as those images haven't ever been offered up for sale, nor will they ever be offered for sale.

     

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  70.  
    identicon
    Anonymous Coward, Sep 20th, 2012 @ 6:27am

    I can't believe the ignorance here

    I've gone back and read some of the comments concerning copyright law. I can't believe the ignorance surrounding this subject. There is an old saying, "A little knowledge is a dangerous thing." I know how this ignorance develops. People hear little bits of information here and there from their equally ignorant friends... or they read a little bit about a legal subject somewhere and they think they understand the totality of the law. Pretty soon laypeople think they know everything about copyright law or some other legal subject and in reality they are WAY off base. In a way I'm glad; then these people have to come and pay me or my attorneys to get them out of the jam they've found themselves in because of their ignorance. If you want to educate yourself on Intellectual Property Law, a good place to start is: Intellectual Property Law for Paralegals by Deborah Bouchoux ISBN: 1401842879. This is real legal education from an expert; not false anecdotal information from your friends.

     

    reply to this | link to this | view in thread ]

  71.  
    identicon
    Anonymous Coward, Sep 20th, 2012 @ 6:29am

    I can't believe the ignorance here

    I've gone back and read some of the comments concerning copyright law. I can't believe the ignorance surrounding this subject. There is an old saying, "A little knowledge is a dangerous thing." I know how this ignorance develops. People hear little bits of information here and there from their equally ignorant friends... or they read a little bit about a legal subject somewhere and they think they understand the totality of the law. Pretty soon laypeople think they know everything about copyright law or some other legal subject and in reality they are WAY off base. In a way I'm glad; then these people have to come and pay me or my attorneys to get them out of the jam they've found themselves in because of their ignorance. If you want to educate yourself on Intellectual Property Law, a good place to start is: Intellectual Property Law for Paralegals by Deborah Bouchoux ISBN: 1401842879. This is real legal education from an expert; not false anecdotal information from your friends.

     

    reply to this | link to this | view in thread ]

  72.  
    icon
    Dude (profile), Sep 20th, 2012 @ 6:35am

    Re: Re: Huh?

    Once again, don't believe the advice of legally ignorant people. They will get you into trouble. Copyright automatically exists when something is put into tangible form. Contrary to the MISTAKEN popular belief, it does not have to be published, bought, sold, offered for sale, or submitted to the Library of Congress for copyright to exist. Copyright lasts for the life of the author plus 80 years. --a Paralegal who specializes in Intellectual Property Law. (Don't even get me started on the mistaken beliefs laypeople have regarding patents)

     

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  73.  
    icon
    Dude (profile), Sep 20th, 2012 @ 6:48am

    Re: I know how to fix all this nonsense

    That is a horrible solution. Patents are a 20 year monopoly given by the government to the patent holder. The rationale behind patents is that individuals or corporations spend a lot of money inventing something, and they need those 20 years to recoup their R@D costs plus make a profit. Without the 20 year monopoly, no one would have an incentive to spend money inventing something. Without patents, the leeches would let someone else spend the money on R@D and then reverse engineer the invention. After 20 years, anyone can produce the invention and society benefits as a whole. I hear all the time how Big Pharma is so evil because drugs that people need, like Prozac, are so expensive. This is just pure ignorance. True, for 20 years Big Pharma had a patent on Prozac and it was expensive. But then Prozac came off patent and anyone could produce it and the prices dropped drastically. If Big Pharma hadn't had those 20 years to recoup its R&D costs and make a profit, it would never have developed Prozac in the first place and 20 years down the road there wouldn't have been anything to come off patent and benefit humanity forever more.

     

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  74.  
    icon
    Overcast (profile), Sep 20th, 2012 @ 6:54am

    Our founding fathers, if they met the current politicians in office; would either kick their asses good or just shoot them dead.

     

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  75.  
    identicon
    Anonymous Coward, Sep 20th, 2012 @ 7:21am

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

    My point is "rights" are non-transferable. I can't sell my free speech rights or my right to vote, why are copy rights allowed to be sold?

     

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  76.  
    identicon
    Anonymous Coward, Sep 20th, 2012 @ 7:24am

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

    I'm good with that.

     

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  77.  
    identicon
    Anonymous Coward, Sep 20th, 2012 @ 7:25am

    Re: I can't believe the ignorance here

    In the spirit of humility, reading you I first thought
    "he's right, copyright is a highly complex matter and just a few ranting thoughts in this comment thread won't cut it"

    then it went to
    "most of us would gladly leave the topic to the expert law scholars if the laws promoted by the historical copyright holders didn't damage the public's best interests"

    and ultimately
    "it's to short to patronize: since your knowledge encompasses the totality of copyright law, let us hear your take on what a copyright reform would restore balance and kill the induced rampant censorship"

    Surely making money off of people ignorance is not your sole purpose in life and you have a meaningful insight to offer here as to what copyright reform we as a society need.

     

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  78.  
    icon
    Dude (profile), Sep 20th, 2012 @ 8:29am

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

    You don't understand the meaning of "rights." You can sell anything tangible that you own. You have the right to use your house or your car or anything else that you lawfully own. You can sell or transfer your right to copy something because you own the copyright, and a copyright is a tangible thing. You can't sell your free speech rights or your right to vote because those aren't tangible goods.

     

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  79.  
    icon
    Dude (profile), Sep 20th, 2012 @ 8:42am

    Re: Re: I can't believe the ignorance here

    You make the mistake of assuming there is a need for copyright reform. There isn't. Nothing needs to be reformed. The problem lies with people who have no legal education misunderstanding the laws that exist and how they are applied. I suppose if I had the same incorrect preconceived notions as some of the people on this board, I would also think there is a need for copyright reform. However, I actually spent a great deal of time and money being educated by top ABA Intellectual Property Law attorneys. Therefore, I know what the actual copyright law is and why it does indeed work. You may think that is "un-humble", but it is a fact that I know what I'm talking about. I'm not going to waste my time or anybody else's time pretending the people on this board have the same level of expertise that I have. I also don't have the time or space to educate everyone here on what actual Intellectual Property law is and why the system we currently have does indeed work and ultimately benefits everyone. The best I can do is tell laypeople to read Deborah Bouchoux's textbook. ISBN: 1401842879. Only after reading this text will laypeople have the prerequisite knowledge of copyright and patent law to be able to have a meaningful discussion.

     

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  80.  
    icon
    Dude (profile), Sep 20th, 2012 @ 9:06am

    Copyright Law 101:

    Copyright Law 101: Copyright exists the moment an author creates something. There is ABSOLUTELY NO requirement that the work be published, bought, sold, offered for sale, or submitted to the Library of Congress. Copyright exists for the life of the author plus 80 years. After the 80 years is up, the work falls into the public domain and anybody can use the work. Copyright also includes the rights to exclusively publish sequels and assign or transfer all rights to another party. No one can copyright "facts," since no one actually creates "facts"; they are merely discovered. For instance, you can't copyright, (or patent) a mathmatical equation. That equation always existed; you merely discovered it. You also can't copyright the stats of your favorite pro baseball player. If he got 100 home runs last year, that is a fact and is thus not copyrightable. However, if you put those facts in a new original compilation such as a book, then the book itself is copyrightable. The facts in the book still remain un-copyrightable, however. Anybody can use them. "Fair Use" means that you can use a tiny snippet of a piece in your own work for critique or to illustrate a point. You can never use the entirety of a work, or the "heart of the work", however. Performance of a copyrighted work in a small social gathering is acceptable. For instance, you do not need permission to sing "Happy Birthday" to a kid at his birthday party. You do not need permission to perform a copyrighted play amongst a group of friends at a social gathering.

     

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  81.  
    identicon
    Commoner, Sep 20th, 2012 @ 9:21am

    Re: Re: Re: I can't believe the ignorance here

    "I also don't have the time or space to educate everyone here on what actual Intellectual Property law is

    Fair enough. You shouldn't bother intervening here either if you have nothing to offer but pointing to everyone else's alleged ignorance and boasting an alleged superior understanding.


    "and why the system we currently have does indeed work and ultimately benefits everyone."

    Does work as in "as intended" ? as in "matching the technological and societal reality" ? as a system consistent within itself ? "Working" is a very relative notion based on the purpose it's supposed to serve.

    The asserted expert in you should realize "ultimately benefits everyone" is a mere... assertion. It's what copyright was meant to exist for I would agree. There are many real life examples showing how dubious the statement currently has become. Plenty on just this site that are unrelated to legal expertise.


    "You make the mistake of assuming there is a need for copyright reform."

    Point taken. I was indeed not assuming you were a conservative. Would you also say it's a "mistake" to the copyright-holders lobbying for for more copyright and copyright enforcement implementation ?

    There's no reason I would deny you to have an opinion. As long as you recognize it as such.


    Lastly, I do hope your post isn't a concealed advertising for the book you suggest.

     

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  82.  
    icon
    Dude (profile), Sep 20th, 2012 @ 10:10am

    Re: Re: Re: Re: I can't believe the ignorance here

    First off, I have no relation to Deborah Bouchoux or her textbook. I make no monetary gain from anyone buying it or not. Secondly, I am an expert. I have the university transcripts and the law license hanging on my wall to prove it. Thirdly, your opinion is meaningless since it is based on zero understanding of the ACTUAL law. You obviously can't propose any sound reforms if you don't understand what we currently have. Fourthly, I am intervening, as an expert, because of the widespread ignorance on these boards. If people choose to discount the advice of an expert and instead rely on the uneducated advice of laypeople, that is their problem, not mine. I am perfectly happy with them having to come to me at some future date and paying me and my attorneys a large sum of money to get them out of the jam their ignorance has put them in. Lastly, my opinion is based on solid education and reality, which gives it far more weight in the world than your uneducated opinion based on misinformed conjecture.

     

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  83.  
    identicon
    Anonymous Coward, Sep 20th, 2012 @ 10:59am

    Re: Re: Re: Re: Re: I can't believe the ignorance here

    "Fourthly, I am intervening, as an expert, because of the widespread ignorance on these boards. If people choose to discount the advice of an expert and instead rely on the uneducated advice of laypeople, that is their problem, not mine."

    Noone couldn't even get to the point of discounting your advice I'm afraid, as you only a book reference so far.


    "You obviously can't propose any sound reforms if you don't understand what we currently have."

    If you mean actually writing laws to best match the elected legislators intention, I agree expertise is required to frame it in the most unambiguous and precise manner possible.

    I disagree that you need to be a legal expert to form a legitimate political opinion. People and their elected representatives are driving legal evolution not the legal experts.


    Unfortunatly you still need clarify if your position on whether no changes required to current copyright law also includes expansion thought by copyright-holding corporations ?

    To be honest I am a bit at a loss as to how with all your expertise and understanding of the world you'd consider legal status-quo to be appropriate. Laws come and go, laws become obsolete, lots of them, legal systems constantly evolve to match a changing reality. Such a massively socially impacting change as the internet would not prompt for a serious evaluation of prior law system.

    Stating that the people -the laymen as you called them- are not legitimate to form their opinion and are lest apt at comprehending the world because they are not trained legal experts negates just doesn't stand, sorry to fundamentally disagree with you.

     

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  84.  
    icon
    Richard (profile), Sep 20th, 2012 @ 1:01pm

    Re: Re: Re: Re: Re: The avreage joe (not our not so average joe)

    Private pockets are far more efficient at moving the economy than public coffers.

    Rather depends on whose prviate pocket you are talking about - remember we are talking about monopolistic rightsholding organisations here.

    Efficiency derives from smaller size and lack of legacy commitments not from public vs private.

     

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  85.  
    identicon
    Dave Nelson, Sep 20th, 2012 @ 3:38pm

    Re: Re: Re: Copyrights are reasonable, if you understand what is protected.

    Has the "Happy Birthday" copyright rumor ever been tested to conclusion? If so , when and to what result? If not, why are we running scared?

     

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  86.  
    identicon
    Anonymous Coward, Sep 20th, 2012 @ 5:41pm

    Dude: respectfully, your knowledge of contemporary copyright law does not apply to older works in the way you appear to think it does.
    Read the Robert Brauneis article on Happy Birthday -- he's not a paralegal, he's Professor of Law at George Washington; Co-Director of the Intellectual Property Law Program; Co-Director of the Dean Dinwoodey Center for Intellectual Property Studies; and Member, Managing Board, Munich Intellectual Property Law Center.
    Also, if you have a copy of Patry on Copyright at work, you might read up on how older Acts may apply to older works and on the meaning of "publication" under the 1909 Act.

     

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  87.  
    identicon
    EvelynU, Sep 20th, 2012 @ 6:13pm

    Re: Pre-1978 CR was a function of its time

    And look at how the Adams' letter issue relates to the constitutional purpose of copyright, which is to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings." Clearly, if Adams had not had the security of copyright law, he never would have bothered to write that letter, eh?

    There is nothing in that clause that hints that heirs, corporations, or anyone else ought to have a practically unlimited right to profit from, or simply squelch, the writings or other creative work, of an author.

    In a perfect world, copyright would last for the lifetime of the author, or at least 50 years from creation, whichever is longer. Why should the grandchildren of an author keep getting royalties? And more pertinent, why should works that are out of print be inaccessible to those who would want to re-print or digitize them? There *is* no reasonable asnwer to that question!

     

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  88.  
    identicon
    zem, Sep 20th, 2012 @ 6:38pm

    Re: Re: I know how to fix all this nonsense

    and if they could recoup that investment in 5 years and not 20 because enough ppl thought is was a great idea and paid for it to become public?

    You realy have a blinkered view of the world.

     

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  89.  
    identicon
    Jezsik, Sep 20th, 2012 @ 6:41pm

    Published means paid?

    So all the photos and stories I've written and posted (without getting paid) are not covered by copyright or just not covered by copyright YET?

     

    reply to this | link to this | view in thread ]

  90.  
    identicon
    Anonymous Coward, Sep 21st, 2012 @ 4:09am

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

    Copyright is a tanginble thing? Can I touch your copyright?

    I think you might want to get your definition of "tangible" in order...

     

    reply to this | link to this | view in thread ]

  91.  
    identicon
    Peter Hirtle, Sep 21st, 2012 @ 4:56am

    Some explanations

    I want to thank Mike Masnick for bringing my article to the attention of his Techdirt readers. It is clear from some of the comments here that either commentators haven't read it or I was unclear in my writing. I may have assumed that everyone knew that the rules for copyright pre-and post-1978 are radically different, but I should have been clearer about this.

    Many commentators asked about the copyright status of television shows. Most pre-1978 court cases said that the performance of a television show did not constitute publication. This is currently embedded in copyright law in 17 USC 101. Selling a program to a network would probably not constitute an offer to the public, and so no publication would occur. The program would, however, be protected by state common law copyrights until such time as the copyright owner authorized publication, at which point the Federal copyright clock would start running. In the case of Star Trek, the first episode was broadcast n 1966, but it was not published with notice until 1978. It was not necessary to register a copyright to receive copyright protection, but Desilu Studios did do so, noting a publication date of 1978. As a work created before 1978 and first published between 1978 and 2003, this episode of Star Trek is subject to the copyright term specified by 17 USC 303: 95 years from first publication or 120 years from creation, whichever is shorter.

    State common law copyrights, BTW, were perpetual, which is why the copyright owner of the Adams letter could authorize its publication in the 20th century and receive the full 95 year term on the letter.

     

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  92.  
    identicon
    Anonymous Coward, Sep 24th, 2012 @ 7:20am

    Re: I can't believe the ignorance here

    Thanks for the tip, Deb!

     

    reply to this | link to this | view in thread ]

  93.  
    identicon
    Pete, Jul 29th, 2013 @ 3:48am

    It's often so difficult situations when you deal with copyrite law.

     

    reply to this | link to this | view in thread ]


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