More Copyright Policy Should Be As Boring As This Supreme Court Decision

from the make-copyright-boring-again dept

The Supreme Court ruled unanimously last Monday in Fourth Estate v. Wall-Street.com, a copyright case that hinged on whether the "registration" of a work—which, by statute, must precede most kinds of infringement lawsuits—happens when the author sends in their application, or whether it happens when the Copyright Office makes a determination and sends back a certificate. There was a circuit split on the issue, in which some courts had gone with the "application approach," and others had gone with the "registration approach," and legal experts were divided on the question.

As of last Monday it is resolved. The Supreme Court went with the "registration approach" and said that unless you're subject to one of the handful of statutory carve-outs you must wait until the Copyright Office does its thing before you can sue.

The Supreme Court decided correctly, for what it's worth -- as Mike wrote about earlier. But, as even a dedicated copyright nerd like your humble author must admit, it's a pretty boring question. Copyright law is a field where small changes can have profound effects on people's lives, where de facto speech policies can be shaped, and where new technologies and media can be formally blessed or condemned to utter oblivion. But it's also a field of industrial regulation, cobbled together in large part by technocrats with domain expertise figuring out what works for all the parties in the room. To its credit, Fourth Estate is a case that limits its impact largely to that latter area.

But the fact that one body of law must do both things is the source of a lot of headache and heartache. Writing effective policy is hard, even when you're not trying to write a single rule that governs both billion dollar studio contracts and comments on a blog. The consequences can be extreme, as Cory Doctorow once explained: "A funny thing happened on the way to the 21st century: copyright policy ceased to exist. Because every copyright policy that we make has a seismic effect on the Internet, and because you can’t regulate copying without regulating the Internet." And of course, "as we make the transition from a world where everything we do includes an online component to a world where everything we do requires an online component, it’s becoming the case that there’s no such thing as 'Internet policy' – there’s just policy."

But it's neither inevitable nor accidental that copyright touches every part of our lives. It's helpful to really break it down here: copyright is an enumerated bundle of restrictions that apply to things called "works."

Doctorow's argument is about the first half of that expression. He elaborated in another column: because everything we do with computers (and especially networked computers) involves observable acts of making copies, copyright touches nearly every use of a work. Uses that once went unregulated are now swept up in the bundle of rights because they involve a copy. There are big commercial examples of this, like how video rental used to be an act of moving a cartridge or a disc from place to place and now it's a licensed act of making copies. But there are also a million little examples of this we encounter every day, from checking out books at the library to sharing a funny picture with friends to listening to our favorite music.

So that's how the first half of the expression went awry; what was once a limited set of exclusive rights is now a mechanism to regulate all sorts of uses of things called "works." That would be bad enough. But the real problem lies in the second half, in terms of what gets called a "work."

That too used to be an enumerated list. The first U.S. copyright law covered maps, charts, and books. Over the years more and more categories were added, but the real shift was more fundamental. It happened, at least in the U.S., in 1976, when the overhauled law changed copyright from a system that was opt-in to one where participation was mandatory. Works were previously only subject to copyright restrictions if the author went through "formalities,"—namely, putting a copyright notice on the work and sending in a registration to the Copyright Office. The 1976 Act removed that hurdle. Overnight, that changed the character of copyright from a regulatory system that applied to a handful of professionals consciously participating in it, to one that controlled nearly every utterance and scribble that got fixed in a tangible medium.

That's the one-two punch. First, through law: applying copyright coverage to basically everything. Then, through technology: expanding the regulated uses to basically all of them.

It's a bad situation, and it's that part that motivates people like Doctorow to take pursue a life of activism. With few exceptions, most people passionate about copyright reform care most about the consequences of copyright as an everything policy, and less so about the nitty-gritty of copyright as industrial regulation.

Which is part of the reason why, to bring it back to Fourth Estate v. Wall-Street.com, the Supreme Court decision is both correct and (mostly) boring. Correct, in part, because actual litigation is something that does not and should not apply to most human beings interacting with copyrighted works, and so it's good for that to be conditioned on opt-in registration. Boring, in part, because it is (mostly) not about the side of copyright that affects blog comments, but instead the side that underpins billion dollar contracts.

Copyright policy has, for decades now, labored under the fiction that there’s no distinction between the boring parts and the scary parts of the law. It’s a good thing to remember there’s a difference.

Filed Under: boring, copyright, impact, innovation, policy, registration, scotus, supreme court
Companies: fourth estate, wall-street.com


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  • icon
    Mason Wheeler (profile), 11 Mar 2019 @ 11:33am

    Doctorow's work is good, but I'd also recommend the book Digital Copyright by Jessica Litman to anyone interested in the history of how we got into the mess we find ourselves in today. She does a very good job explaining the details and making such an arcane subject approachable and understandable to ordinary readers.

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    identicon
    Anonymous Coward, 11 Mar 2019 @ 12:25pm

    The anti-copyright people are so desperate for a victory that they think it really matters that someone who registers a copyright has to wait a bit for it to be completed to file suit. No rights have disappeared, and no lawsuits will be stopped by this.

    The internet hasn't changed copyright any more than cellphone cameras have eliminated the right to privacy. Cameras just got cheaper, that's all. The point of copyright is to protect the hard work of a content creator, and the internet changes this not at all.

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    • icon
      Gary (profile), 11 Mar 2019 @ 12:39pm

      Re:

      The internet may not change the reason for copyright - but it turns copyright law into an obscene monster that is being used to strip privacy, lock down hardware (like cars) and stile free speech.

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      • identicon
        cpt kangarooski, 11 Mar 2019 @ 1:27pm

        Re: Re:

        > The point of copyright is to protect the hard work of a content creator

        The internet may not change the reason for copyright

        If I may channel John Oliver for a moment, it’s true that the Internet did not change the reason for copyright, but that’s not the reason for copyright, this is the reason for copyright: To promote the progress of science (i.e. knowledge) by encouraging the creation and publication of works that are as much in the public domain as possible as rapidly as possible, that they might be freely available and most useful to the general public. And that the mechanism is that copyrights are granted to authors to create and publish works which they otherwise would not have created and published, while simultaneously limiting those same copyrights as much as possible in terms of both duration and the scope of the exclusive rights.

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        • icon
          Mason Wheeler (profile), 11 Mar 2019 @ 1:44pm

          Re: Re: Re:

          This exactly. We as a society have lost track of this simple truth: that copyright is a means to an end, and not an end unto itself. We've expanded and expanded and expanded copyright to the point where we now have a 200-pound tail wagging a 5-pound dog!

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        • icon
          Scary Devil Monastery (profile), 12 Mar 2019 @ 5:57am

          Re: Re: Re:

          "... this is the reason for copyright: To promote the progress of science (i.e. knowledge) by encouraging the creation and publication of works that are as much in the public domain as possible as rapidly as possible, that they might be freely available and most useful to the general public."

          That actually isn't, and never was the reason for copyright. Copyright was implemented solely in order to protect a major UK publisher from competition. Only after pushing Queen Anne's old statute through a recalcitrant parliament did the publishers begin harping about how copyright "protected artists".

          At the time, the countries with least protection of this kind - notably Germany - had the biggest and most thriving community of artists and publishing philosophers.

          Copyright wasn't created for authors. Historically it's never been needed. Today it's demonstrably shown that anyone making a copy can and will do so.

          Copyright as it was written never had any business being a law in the first place. Right of attribution, sure. Right of commercialization, of course.
          But right to copy...? That can not be enforced if you have technology which actually works.

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          • identicon
            Anonymous Coward, 12 Mar 2019 @ 6:55am

            Re: Re: Re: Re:

            The real reason for copyright back then was to protect a printer publishers investment in printing a book from pirate printer stealing their market with cheap, rushed low quality copies. With hand set type, it was a process of months to print a book section by sections, and there were no opportunities of a sale until the last section was printed, folded and sewn in with all the earlier printed section. If, having estimated the market size, somebody stole most of that market, the printer was left with copies that could not be sold,having payed for the labour and materials costs of producing the works.

            The real value of copyright was management of production of copies in a world where they were produced by a batch process such that enough copies for the expected market are produced before any sales can be made. Note, back in those days, the type needed to print a section of a book was re-used for a latter sections, as printers did not usually have enough type to keep a book in type, and so a reprint required that the book was reset, and that only occurred for very popular books. Part of the skill of the printer was estimating the market for a title, so that they produced enough copies to satisfy the market, and a new printing was only undertaken when there was sufficient demand to make it worthwhile..

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            • identicon
              Anonymous Coward, 12 Mar 2019 @ 8:30am

              Re: Re: Re: Re: Re:

              "The real reason for copyright back then was to protect a printer publishers investment in printing a book from pirate printer stealing their market with cheap, rushed low quality copies."

              Strangely enough the market being stolen by cheap copies turned out to be a very good thing, looking at history in france, germany, and the UK before copyright.

              Also, the UK didn't have copyright before bloody Mary created a political-religious censorship tool and put the guild of stationers in charge of determining whether any printed publication met the standard for censorship or not - and it was that very same guild which later on, when their charter was set to expire, tried to have the legislation remain, with them still in charge.

              Copyright is a runaway protectionist Red Flag Act and nothing else. Save for the right of attribution and the strict commercial rights it ought to be dismantled. It's become pretty obvious that there really is no way to make it work to the benefit rather than the detriment of the public.

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    • identicon
      Anonymous Coward, 11 Mar 2019 @ 12:40pm

      Re:

      Keep on hitting that straw.

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    • identicon
      Qwertygiy, 11 Mar 2019 @ 1:39pm

      Re:

      Might I suggest you look over the article again, and reread where he said this doesn't really make a difference to regular people and legitimate content?

      This isn't an anti-copyright decision, this is an anti-fraud decision.

      I apply for a copyright on Alice in Wonderland.

      I wait a few weeks, then sue a publisher for printing a new version of Alice in Wonderland.

      The copyright office won't reach a decision on whether or not my application was accepted for several months, even if they do their job perfectly and throw it out as soon as they read it.

      If application is all that matters, I can legally swindle that publisher for infringing on "my" copyright.

      If registration is what matters, the copyright office has to say "yeah, your application is valid" first. But I can still sue over anything between application and registration once I have that registration, so if I'm legit, it doesn't lessen my ability to protect my copyright at all. It only hurts me if I'm a fraudster.

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    • identicon
      Anonymous Coward, 11 Mar 2019 @ 1:41pm

      Re:

      "The point of copyright is to protect the hard work of a content creator." No, it's not, not at all.

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    • icon
      Gwiz (profile), 11 Mar 2019 @ 2:06pm

      Re:

      The point of copyright is to protect the hard work of a content creator...

      Nope. The granting of additional rights via copyright is the means, not the purpose. The purpose of copyright is to promote progress and enrich society.

      It's funny how pro-copyright people always overlook this. The purpose of copyright has never been about making sure the creator (or his great-great grandchildren) get paid. The public agreed to give up some of their property rights for a limited time to promote a more robust public domain. The pro-copyright side has reneged on this deal with ever expanding copyright terms.

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      • icon
        That One Guy (profile), 11 Mar 2019 @ 2:33pm

        Re: Re:

        It's funny how pro-copyright people always overlook this.

        To be fair I'd say that 'mistake' isn't a pro-copyright(no need to adopt the reverse of their strawman) issue, so much as a copyright maximalist one. Someone can be 'pro-copyright' and still understand that the goal of copyright isn't to reward creators but to incentivize them in order to benefit the public.

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    • icon
      Cdaragorn (profile), 11 Mar 2019 @ 2:07pm

      Re:

      Your comment perfectly demonstrates one of the biggest problems with what has happened to copyright over the last few decades. People have moved away from understanding what copyright is meant for and moved to an incredibly selfish and completely incorrect view of what it's supposed to be about.

      No, copyright is NOT about protecting anyone's hard work, content creator or otherwise. In fact it's not about the content creator at all. It's about encouraging people to create new works so that the public can use them. The temporary monopoly copyright gives was originally correctly understood to be highly costly to the public and therefore carefully kept small. It was only tolerated as it was seen as providing a strong incentive to create without being too onerous on the public's interests.

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        identicon
        Anonymous Coward, 11 Mar 2019 @ 11:21pm

        Re: Re:

        https://en.wikipedia.org/wiki/Copyright

        From Wikipedia, on the Statute of Anne, it says that copyright was designed to protect authors and their families from the "ruin" of unauthorized duplication of their work:

        "Often seen as the first real copyright law, the 1709 British Statute of Anne gave the publishers rights for a fixed period, after which the copyright expired.[18] The act also alluded to individual rights of the artist. It began, "Whereas Printers, Booksellers, and other Persons, have of late frequently taken the Liberty of Printing ... Books, and other Writings, without the Consent of the Authors ... to their very great Detriment, and too often to the Ruin of them and their Families:".

        So the ORIGINAL copyright law (1709) in Great Britain is not focused on the public interest at all.

        Don't be fooled: a very small clusterf**k of tech-savvy loudmouths are trying to give the impression that they speak for the majority, when they do not. Article 13 has enraged them because it proves they can no longer make the world dance to their tune, as the world grows increasingly aware of how the internet works and how much damage it has caused to creators.

        The sheer number of anti-copyright articles on this site is mind-boggling. Every day, one, two, three, or even FOUR articles seem to spring up, so as to keep the extended headlines at or near the top of the Google "News" search results. Their feedback loop reinforces their belief that they are relevant. Even more amusing is that they THINK they are anonymous (they aren't if you know where to look), or that someone cannot figure out how they are connected.

        Very soon, Article 13 will restore the original power of copyright to authors and creators, not for the benefit of large corporations, but for the creators themselves, who no longer have to deal with these corporate intermediaries if they don't want to, but who have the option to do so nonetheless.

        How many of the authors here who write extensively on legal issues actually have law degress or licenses to practice law? Do the research yourself and findout.

        Now that I have seen behind the internet veil to the cast of characters involved, I have to say I am not terribly impressed. We're talking about a core group of four or six people, around whom another dozen or so are circling. That's is: no more than TWENTY people are attempting to monopolize internet thought, and they really believe their "tech skillz" will enable them to pull this off. Article 13 is the "reality testing" that tends to cause those with incorrect beliefs to detonate, and we've seen this repeatedly here.

        I have no need to "dox" anyone here, since many of us post anonymously (including myself), but knowing who all the players are and their motivations makes it easy to view these articles in their proper light. This drama has played out on many internet fora before, and will no doubt do so again, but the groups that use this technique are finding it increasingly difficult to fool government and the masses, which is why both piracy and Section 230 are almost literally on their last legs.

        Anyone with half a brain should know that when someone responds to points with personal attacks, imputations of mental illness, condescension ("we've already explained this to you," as if their word and theirs alone were gospel), and other flawed debate tactics or socially unacceptable (or downright illegal behavior), should clue the reader in to what they are dealing with. That Masnick lets these types roam free on this site tells the reader all they need to know about him.

        So far, Masnick has been able to play both sides of the fence, but relatively soon, he is going to be forced to align himself with one side against the other, and my guess is he is going to simply choose the side he believes will be the winner going forward.

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        • identicon
          Anonymous Coward, 12 Mar 2019 @ 12:06am

          Re: Re: Re:

          You got that right, kids; it's Jhon Sanford Smith's Projection Show Time again!

          From Wikipedia

          In those two words alone Jhon reveals his playbook. He despises Wikipedia for being a free resource reliant on constructs such as the public domain. The very fact that they contributed to the SOPA protests through blackout makes him grind his teeth in anger. But because he gets to interpret one article in one way that fits his consumer-unfriendly diatribe, a publicly editable resource is suddenly word of God for him.

          So the ORIGINAL copyright law (1709) in Great Britain is not focused on the public interest at all.

          Okay, so thanks for confirming that copyright law was never intended to benefit the public. Small wonder why the public is angry at you for suing grandmothers for your porn ticket.

          Don't be fooled: a very small clusterf**k of tech-savvy loudmouths are trying to give the impression that they speak for the majority, when they do not. Article 13 has enraged them because it proves they can no longer make the world dance to their tune, as the world grows increasingly aware of how the internet works and how much damage it has caused to creators.

          Okay, if the number of people is so small, how do they wield the influence and control you claim they have? Especially given the fact that one of your running gags (I hesitate to call it trains of thought) is that nobody reads this site, in particular anyone reasonable or rational. Where is all this "dancing to their tune" coming from if by your own admission this site is so insignificant?

          The sheer number of anti-copyright articles on this site is mind-boggling. Every day, one, two, three, or even FOUR articles seem to spring up, so as to keep the extended headlines at or near the top of the Google "News" search results. Their feedback loop reinforces their belief that they are relevant. Even more amusing is that they THINK they are anonymous (they aren't if you know where to look), or that someone cannot figure out how they are connected.

          You do realize that cases drag on for a bit, right? As in articles don't just report on one misuse or lawsuit ONCE, and never talk about it again. There's follow-up. There's developments. Does the fact that reporting about ongoing news piss you off that badly? If so... why do you even read this site, which again, based on your own description, is read by unreasonable people? I'm guessing you'd also be against the news reporting on financial crises and political scandals, too? Or would they be allowed to mention the 2008 Lehman Brothers crisis ONCE, and then it's an embargo for the rest of eternity?

          Very soon, Article 13 will restore the original power of copyright to authors and creators, not for the benefit of large corporations, but for the creators themselves

          Right, because handing more power to the large corporations using bamboozled creators as a vector is obviously not going to result in further abuse. Your corporations have issued Article 13-style notices on white noise, bird calls, and silence. Smaller creators who use their own white noise and bird calls and silence are not suddenly immune to overstepping corporations who DMCA takedown everything that they think looks at them funny.

          How many of the authors here who write extensively on legal issues actually have law degress or licenses to practice law? Do the research yourself and findout.

          And you have the legal knowledge and background to justify this claim?

          Now that I have seen behind the internet veil to the cast of characters involved, I have to say I am not terribly impressed. We're talking about a core group of four or six people, around whom another dozen or so are circling. That's is: no more than TWENTY people are attempting to monopolize internet thought, and they really believe their "tech skillz" will enable them to pull this off. Article 13 is the "reality testing" that tends to cause those with incorrect beliefs to detonate, and we've seen this repeatedly here.

          So if this site is, again, so insignificant, exactly what do you have to worry about?

          I have no need to "dox" anyone here, since many of us post anonymously (including myself), but knowing who all the players are and their motivations makes it easy to view these articles in their proper light.

          Because apparently in your world, the desire to see less grandmothers getting sued based on flimsy IP address evidence is the dog whistle sign of terrorism or something.

          This drama has played out on many internet fora before, and will no doubt do so again, but the groups that use this technique are finding it increasingly difficult to fool government and the masses, which is why both piracy and Section 230 are almost literally on their last legs.

          This "piracy is on its last legs" thing was supposed to happen with the DMCA. It was supposed to happen with FOSTA. Enough with the laws that don't fucking work already; it's a waste of taxpayer money just so porn trolls can demand more money from them. See, this is why nobody likes you.

          Anyone with half a brain should know that when someone responds to points with personal attacks, imputations of mental illness, condescension ("we've already explained this to you," as if their word and theirs alone were gospel), and other flawed debate tactics or socially unacceptable (or downright illegal behavior), should clue the reader in to what they are dealing with. That Masnick lets these types roam free on this site tells the reader all they need to know about him.

          You literally responded to logical rebuttal with the assumption that the user replying to you had Asperger's and that was reason enough to treat him with scorn.

          How many glass houses have you shattered now?

          So far, Masnick has been able to play both sides of the fence, but relatively soon, he is going to be forced to align himself with one side against the other, and my guess is he is going to simply choose the side he believes will be the winner going forward.

          The side he's going forward with? My guess it's the side that isn't aligned with John Steele and Paul Hansmeier. You know, the glorious defenders of copyright, last bastion of intellectual property defense.

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        • identicon
          Anonymous Coward, 12 Mar 2019 @ 3:52am

          Re: Re: Re:

          So far, Masnick has been able to play both sides of the fence, but relatively soon, he is going to be forced to align himself with one side against the other,

          Who is going to force him? As in all areas of politics there are shades of grey, and not just black and white.

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        • icon
          Scary Devil Monastery (profile), 12 Mar 2019 @ 6:04am

          Re: Re: Re:

          Really, jhon/Bobmail? Queen Anne's statute?

          The one history is pretty clear was a political-religious censorship tool which was later on remade to benefit mainly the Guild of stationers when their royal charter on governing the printing press was about to expire?

          Yeah, they did say it "promoted the artist" and not even a single member of parliament believed it even then.

          And after your defense of the original censorship tool of a pissed-off old british queen you're right back to glorifying article 13 which, once again, will do none of what you say because that's not what article 13 is about.

          This part is especially ironic:

          ...but for the creators themselves, who no longer have to deal with these corporate intermediaries...

          Yeah, they'll have to go on their knees and beg the major labels instead, you fuckwit. Which, i might point out, is a corporate venue far more abusive and exploitative by far than any of the tech companies you could ever name.

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        • identicon
          Anonymous Coward, 12 Mar 2019 @ 11:30am

          Re: Re: Re:

          We are all glad you’ve discover the statute of Anne and also Wikipedia. Now if your done sobbing into your keyboard, the adults are having a conversation.

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    • identicon
      Anonymous Coward, 12 Mar 2019 @ 5:04am

      Re:

      The point of copyright is to protect the hard work of a content creator...

      Your understanding of US copyright law is inaccurate.

      Content creators (in the US) are required to waive their distribution rights when signing contracts to publishers, whose first step is to lock the content to narrow distribution methods, while paying virtually nothing to the actual content creator.

      This has lead to an increasing number of lawsuits by those very creators.

      It has also lead to an increase in the number of bogus copyright claims by said "creators" (read: publishers) who have taken it upon themselves to start legal threats without actually owning the copyright in question.

      How is this "protecting" content creators.

      Don't answer, please. The last thing I need to read from you is further ignorance. Oh, and just in case you're one of those parents: immunize your kids.

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      • identicon
        Anonymous Coward, 12 Mar 2019 @ 9:17am

        Re: Re:

        How about he doesn't, and we quarantine them instead?

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      • identicon
        Anonymous Coward, 14 Mar 2019 @ 10:52pm

        Re: Re:

        Why the ad hominem? You do understand the biological variability of responses to immunisation, don't you?

        Or are you one of those who haven't actually looked at the wide range of responses that can and do occur in response to any particular immunisation protocol?

        Immunisations are an attempt to provide the herd with some level of protection from specific pathogens or diseases. How any individual responds to the specific protocol given will vary depending on a large range of factors. In some cases, the immunisation vector fails to provide any benefit due to the individual already having an immune response. For others, there is varying levels of protective immune response from complete immunity to none at all.

        Our current state of medical knowledge is such that we are unable to determine before giving the immunisation protocol whether or not any individual will receive any benefit from the protocol in question. All we can assume is that there is a certain level of probability that the immunisation protocol will be effective over the broader population.

        I have had various immunisations over the decades and for specific immunisations, my biological response has been quite different to the response of many others. I still have them because I don't wish to have the consequences of the specific pathogen running rampant through my system. But, as a matter of course, I do not bother with any of the various influenza immunisation protocols that are available. From my perspective, I watch the responses by many people who I come in contact with and many of them appear to be suffering from unanticipated effects from those protocols (this is they get sick after having the immunisations).

        In relation to the general population having a higher enough level of immunisation, then I don't see a problem with a portion of the population not wanting to have the immunisation process. They bear the consequences of their choices in their own health or their families health.

        One old-timer (who has since passed on to a better place) recounted to me that his mother used to take him and his siblings to play with children who were exhibiting various illnesses to ensure that her children would gain an early advantage by the biological self immunisation process. Nowadays, it appears that fear is so prevalent that this kind of thinking of providing a natural protocol for immunisation is not even considered an option.

        As a child I was around other children who were contagious with that old familiar affliction called "chicken pox" and I never caught it. It wasn't until I was in my thirties, that I managed to get it from three little boys who were going through their third bout of it. Not a pleasant thing to experience for an adult, apparently six days of hallucinations was causing the doctor to be concerned about the effects. But, thankfully the blessing of the LORD God Most High got me through it and well enough that I was able to attend my own wedding some weeks later with no apparent visible effects. Those three little boys gave their mother away and became my strapping giants of sons in the process.

        If you are so afraid of the boogie-man that you cannot allow others to not undertake any immunisation process, I feel sad for you.

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  • identicon
    Anonymous Coward, 11 Mar 2019 @ 12:44pm

    the overhauled law changed copyright from a system that was opt-in to one where participation was mandatory.

    It's not "mandatory" any more than it was before (i.e. when copying works of others). Unlike some European countries, the USA has always allowed authors to opt out of copyright.

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    • icon
      Parker Higgins (profile), 11 Mar 2019 @ 1:00pm

      Re:

      Oh really? How do you do it, then? Absent a formal declaration like a CC 0 waiver, what are the steps by which you can opt out? Because if opting out requires finding and attaching legal documents to your work, it sure sounds like participation is effectively mandatory.

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      • identicon
        Anonymous Coward, 11 Mar 2019 @ 1:08pm

        Re: Re:

        Absent a formal declaration like a CC 0 waiver, what are the steps by which you can opt out?

        It's impossible if you rule out the legal means by which one can do it, but "mandatory" doesn't mean hard or cumbersome. Opt-out systems suck and we should fix that, but we're not as bad as Europe which has some harmful actually-mandatory laws (e.g., Spanish newspapers cannot give up their right to get money from Google News, which is why Google shut it down).

        I mean, by that logic, you could say participation was impossible prior to 1976. Confusing terminology is not going to help get a proper legislative response.

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        • icon
          Parker Higgins (profile), 11 Mar 2019 @ 1:16pm

          Re: Re: Re:

          I don't really find your response persuasive, but even on your own terms... how did a person opt out in the decades between the removal of formalities and the introduction of CC0 waivers?

          The (obvious) difference between pre-1976 participation and post-1976 abstention is that the law does not provide a mechanism for opting out. People have cobbled together hacky ways—and you have to admit, CC0 is hacky, and I'd say the jury's still out on whether it applies to the more inalienable portions such as termination of transfer—but if you are hanging your hat on the distinction between "so arduous there are literally zero examples of it for decades until a team of lawyers devised a hack" and "impossible," I don't really see the point.

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

          • identicon
            Anonymous Coward, 11 Mar 2019 @ 1:35pm

            Re: Re: Re: Re:

            how did a person opt out in the decades between the removal of formalities and the introduction of CC0 waivers?

            The MIT license goes back decades and has similar practical effect, though of course that's not quite the same. People like Daniel J Bernstein had been using informal waivers long before CC0; lawyers expressed concerns about it, which might be where CC0 came from.... but I'm not aware of any American court ever "returning" copyright to someone who didn't opt out hard enough.

            "so arduous there are literally zero examples of it for decades until a team of lawyers devised a hack"

            That seems dismissive of the entire Creative Commons movement. Lots of people have figured out how to opt out of their rights to varying degrees. There are all kinds of rights that people can gain/waive with difficulty, such as opting out of vaccines (if we say vaccines are mandatory we'll seriously misanalyze an ongoing health crisis).

            And then there are the things that are really mandatory, like moral rights in some countries. I just don't see how it helps anyone to conflate these categories. Opting out of copyright is significantly easier than, say, claiming an income tax refund or getting a passport, as millions of people do.

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

      • icon
        Scary Devil Monastery (profile), 12 Mar 2019 @ 6:07am

        Re: Re:

        Creative Commons arose precisely because there was no way to "opt out" of copyrighting a work. At best you could drop all claims and then watch some greedy bastard steal it from the public domain.

        Hence creative commons which uses copyright law to keep those works free and accessible to all.

        And boy, did blue/bobmail's spiritual brethren scream in outrage over that stunt.

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

    • identicon
      Anonymous Coward, 11 Mar 2019 @ 1:22pm

      Re:

      I think the point of this though, is that prior to 1976, the expressions of most people and their interactions did not have legal protection. This generally worked out OK, although there were some of the expected edge cases.

      After 1976 and before 1995-ish, we entered an era where every recorded expression was considered a copyrighted work, and gained legal protection. Since these were a small part of the average person's life, and lined up fairly well with commercial production (people holding copyrights usually wanted to get paid), the system still worked to promote the useful arts and sciences.

      But after 1995, things began to shift. As time went on, more and more of the average person's social interactions happened at least in part via a computer, which meant that copying of works was involved.

      By 2015, it got to the point that most people's personal papers are stored on the same device used to listen to music, watch some TV, chat with a group of friends, leave feedback about a news article, read/watch the news, set up and track appointments, take a picture, share a picture, play an interactive or solo game, etc.

      This device is a computer, and all those works, which have very different use cases, all end up governed by the same legislation, and stored/protected in the same way.

      So while it's still possible today to live life as a human mostly outside the copyright realm, to live life in today's society it is mandatory not only to interact with copyright, but in some cases to be an expert on copyright to avoid violating it or forcing others to violate it.

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

      • identicon
        Anonymous Coward, 11 Mar 2019 @ 2:01pm

        Re: Re:

        Yeah, I fully agree with Parker's and your general point. "Opt-out" is just a more accurate way to say it (and on a tech-focused site, you can expect some people to be sticklers for correctness), and already has the negative connotations we're going for.

        to live life in today's society it is mandatory not only to interact with copyright, but in some cases to be an expert on copyright to avoid violating it or forcing others to violate it.

        Well, that's not the fault of the 1976 copyright act. The bulk of the copyright-related problems ordinary people see come from copyright maximalists, who have teams of lawyers registering the copyrights of everything they produce. A radio in the background of your Youtube video or a clip of a TV show would get you in trouble, even if registration were optional.

        It's ridiculous to have every email, crappy cellphone video, and trollish internet comment copyrighted by default, but that's not what causes trouble for the average joe.

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

        • icon
          Cdaragorn (profile), 11 Mar 2019 @ 2:14pm

          Re: Re: Re:

          Except that you're ignoring the other half of what the 1976 act did. It didn't just make everything automatically copyrighted. It massively expanded what could be covered by copyright. That's the part that causes trouble for the average joe.

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

          • identicon
            Anonymous Coward, 11 Mar 2019 @ 4:20pm

            Re: Re: Re: Re:

            It massively expanded what could be covered by copyright. That's the part that causes trouble for the average joe.

            Were videos, music, and writings not already covered by copyright? Maybe state copyright in some of those cases. What problematic categories were public domain before then? The only one that comes to mind is software.

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

  • icon
    That Anonymous Coward (profile), 11 Mar 2019 @ 3:31pm

    HI PARKER!!!!!!!

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


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