One of the most tragic ideas to evolve in this century is the idea of "intellectual property"--that you can own an idea for years, sometimes tens or hundreds of years. That term covers things outside of copyright, like patents, but the damage the idea as a whole in its present incarnation does to our long-term culture is the same.
Ideas are intangible, not property, and someone can think the same thing as you without ever having met you or heard of you. A more accurate term than "intellectual property" would be a "short, government-protected monopoly on an idea". But we call it property, and after many years of calling that, it insidiously starts seeming to us like real property, and not the temporary monopoly it really is.
There's room for short, temporary monopolies. As the framers realized, copyright and patents are critical to fostering innovation and culture. Unfortunately, "short" went from being a very reasonable few years, to a slightly less reasonable 20ish years, to now, where if you publish a work today the chances of it being available to the public within 150 years are slim. Do a grandchild's grandchildren deserve to lord over something created by a dusty ancestor centuries ago?
In a strange and sad way, our IP regime today means that individual authors are unlikely to be remembered by history 100 years from now. Look at Project Gutenberg or Wikiart: hundreds of people from all over the world volunteer to lovingly scan, transcribe, format, categorize, and distribute works from the last few centuries. They do this because that work belongs to the public now, and their efforts keep the memories and impact of those works and authors alive. Do you think anyone will do the same for your work 100 years from now on the pain of legal threats and huge fines, or is it more likely it'll fade into oblivion?
As the framers realized, copyright and patents are critical to fostering innovation and culture.
Well, at least Jefferson was initially opposed to the idea, which he (rightly) viewed as a monopoly:
Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it… . That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.
Later he acquiesced, but with a much stricter proposal than what eventually was written in the Bill of Rights:
Art. 9. Monopolies may be allowed to persons for their own productions in
literature and their own inventions in the arts for a term not exceeding — years
but for no longer term and no other purpose.
I don't quite get the point of discussing or arguing about what the framers "meant". They're not God or something.
It may of course be useful in trying to understand how the current supreme court comes up with its decisions. I personally don't buy that law should be interpreted based on the "original intent" of a few dead persons, who had opinions about it.
Courts interpret the laws any way they want, that is the law, right? If they seem to get lost with it, then congress should change the laws so there is less room for mis-interpretation. What should matter is democracy now.
First, we live in a constitutional democracy. The constitution is supposed to be the set of meta-rules which dictate how and what the government can do. Like it or not this turns out to come down to literary interpretation. There are two major schools of thought about how one should interpret literature, and I prefer the one that suggests the context in which something was written should be taken into consideration (the other school, which happens to dominate departments of English Literature, is kind of nutty).
You may think that constitutional democracy is a Bad Idea, in which case feel free to argue that point. But within that framework, we live by rules, and what those rules mean -- or more importantly, what people think they mean -- matters.
This kind of thinking is unappealing to programmers and engineers -- it's a concept generally known as "social construction". Our government is a social construct. So is money. So is bitcoin. So are mathematical proofs (!) -- at bottom, a mathematical proof is an argument that convinces mathematicians. If you don't want the FBI to shoot you, you might want to consider that having a shared understanding of the laws they believe they are enforcing is a Good Idea.
Second, it's interesting to realize that most of the stupid stuff happening today was anticipated, and the fine points argued over, by a group of smart guys over two hundred years ago. It's sad that the level of debate today comes down to arguing over what these guys meant by something, especially when most of those doing the arguing lack basic comprehension skills.
> There are two major schools of thought about how one should interpret literature, and I prefer the one that suggests the context in which something was written should be taken into consideration (the other school, which happens to dominate departments of English Literature, is kind of nutty).
The Constitution is not literature, and this confuses the goals of law interpretation and literature interpretation.
When interpreting the law, we are trying to find the meaning of the law. The "author is dead" school of analysing literature has a different method not because they are nutty, but because they have a different goal: not to divine some true meaning of the text, but to understand the experience of reading the text -- something which is completely irrelevant to the law.
The only reason that anyone could think that a "textualist", context-free interpretation of the law makes sense is that the US was founded relatively recently. Older countries have no choice to deal with the fact that meanings change, and that the law makes no sense if we pretend it was written today.
Yes but judges are people, and their decisions are based on what they believe the rules they're enforcing mean, and they are interpreting those rules based on parsing the meaning according to their theory of how you comprehend text which, for most people, comes down to "am I understanding this sentence as the person who wrote it meant it?"
So if we want to predict, understand, or shape their decisions we are perforce interested in both what they currently think those rules mean and what and how we might persuade them differently. There is no cosmic law that will determine whether our idea of what is right will prevail -- we are a nation of humans and not cosmic laws.
Imagine you are a successful actor who is convinced that he does not need to pay income tax because he has read the constitution and according to his reading he does not need to pay income tax. Even if he is "correct" for some value of correct, it does him no good when the IRS shows up at the door.
> the context in which something was written should be taken into consideration
Yes surely if we want to understand what they meant when they wrote their opinions. But those were just their opinions. They were not the law that was passed. A law is not an opinion. What is it? It is a text. Who interprets it? The Judges.
For a judge to say: "I rule this way because I think this is what Jefferson wanted" is a cop-out. It would be more honest for them to say: "I rule the law this way because I'm the one who interprets the law here".
Your argument is that law should be treated like a clean-room implementation with zero original context. The original interpretation is apparently meaningless. But interpretations by random judges are fine? And it's appropriate for these random decisions to become precedent?
I've never understood this mindset. It's treating the English language like machine code, as if it could be written with a degree of deterministic certainty. Our human language is littered with reasonable unwritten assumptions, words that slowly evolve, words that completely change meaning.
If we happen to know what the original authors of the bill meant with their words, why should we substitute their known interpretation with that of some random judge?
Is the American system really suffering from too much Jeffersonian-ism? I'd argue the opposite.
I must amend that I do have a lot of respect for the wisdom of the framers and of the Constitution. Mostly I would say for the wisdom of the Constitution, because it does not matter much what they thought when they wrote it, does it?
I appreciate your points and they make me think much, so thank you. Apologies for everyone for being a off-topic already. Here's what I think at the moment:
Congress is the body that makes the laws. Not the judges. The current congress is responsible not only for the laws they passed, or didn't pass, but ALSO for all the laws they didn't update, or did not make unambiguous enough for the judges to interpret.
A judge of course can do what they will. But their job is to try to interpret what the CURRENT congress intends the laws to mean, NOT what some previous congress did. The first congress formed by the framers is just one of those.
This my opinion is not based on what I think the original framers thought would be good. My opinion is based on what I think would be good.
"A judge of course can do what they will. But their job is to try to interpret what the CURRENT congress intends the laws to mean, NOT what some previous congress did. The first congress formed by the framers is just one of those."
Judges in low level courts make decisions based on evidence and the law. Appeals courts take the constitution into account. The supreme court only considers the constitution (the facts of a case matter only insofar as to how the law is being considered).
In any event, a court will tend to place weight on the intentions of the people who wrote a law vs. the current congress. E.g. a law endorsing "gay parades" written in 1850 would be understood to mean something quite different from an identically worded law written in 1980.
> I don't quite get the point of discussing or arguing about what the framers "meant".
It's pretty important to one extremely common justification for the government's authority, that being the "social contract." As the justification goes, the reason that authority is legitimate is that we have agreed to it. When you point out that, no, in fact no living person has agreed to any such thing or even been given the opportunity to do so, the response is that people in the past agreed explicitly to the Constitution, via their elected representatives in each state that ratified it.
If you accept this justification (you can probably tell by my tone that I don't), it ought to be pretty important what was agreed to, and the only remotely plausible way to interpret the terms of a supposed contract is as the parties to the contract intended.
> I don't quite get the point of discussing or arguing about what the framers "meant". They're not God or something.
Constitutions are social axioms. Without them, the laws float on the current of public opinion moderated only by a little bit of wisdom accumulated by legislators, judges, and law enforcement. Democracy without official limits on governmental power has long been considered a poor form of government.
Words that make up laws are not mathematical; to fill in the gaps in meanings of laws (the Constitution being the highest law), or to refine the application of a law, the intent of the lawmakers is looked at, and intent is usually determined by other writings by those lawmakers, and debate preceding the law's passage.
It takes a super-majority to change the constitution, which I applaud. Else some cosa-nostra could easily take over everything that protects the rights of minorities. Constitution is a way for all "minorities" to agree to such a basis for a society which doesn't burn itself up in continual civic unrest. And let's face it, we are all minorities one way or another. Red hair?
My point is not about whether we should have laws that need a super-majority to change them. It is about the type of arguments on why to change them or not. We shouldn't not change them because someone 200 years ago wouldn't have liked it. Even worse argumentation: We shouldn't change it because this is what I, me, the Judge of supreme court think they would have wanted me to do.
C'mon Supreme Judges, stop hiding behind the veil of history. Acknoweldge the responsibility you have for your OWN decisions.
We already see the pernicious effect of eviscerating all the meaning from words like "limited" in copyright and patent law. If you take the literal, almost mathematical, meaning of "limited" it places no practical limits on anything. Limited now means the opposite. That's obviously a ridiculous and evil outcome.
Similarly the words "necessary and proper" have lost any power because lawyers have argued them into submission.
The role of judges should be not to improvise on the basis of this evacuation of meaning, but to assign a reasonable meaning, based at least in part on supporting documents that show what the authors of those words had in mind.
Because once upon a time people agreed with them and that support lead to law. So it's important for us to attempt to understand exactly WHAT they were agreeing too, and why, and to uphold that. IMHO our interpretations of laws should NOT change. We need to maintain the interpretations and come up with new laws if sentiment changes.
While I'm aware that discussing the framers' intent is common when arguing constitutional law, that wasn't my intent at all. I posted it as a piece of historical information that contrasted with the previous statement about the framers' thoughts on the issue, and because I think Jefferson was a smart guy who thought about these things and his arguments can be useful when forming our own opinion.
> As the constitution's framers realized, copyright and patents are critical to fostering innovation and culture.
Well.... I don't think anyone around that time was seriously thinking about patent law and innovation in that capacity. "Well we have a new country, and handing out patents is just one of those things you're expected to do." Even the Soviet Union had a patent system, and they're the last group you'd expect to sign up for the idea of patents. And yet here you go: http://patentdb.su/
The modern patent system goes back to the 1600s when some boring king made some annoying promises that he had to compromise on:
By the 16th century, the English Crown would habitually grant letters patent for monopolies to favoured persons (or people who were prepared to pay for them).[13] This power was used to raise money for the Crown, and was widely abused, as the Crown granted patents in respect of all sorts of common goods (salt, for example). Consequently, the Court began to limit the circumstances in which they could be granted. After public outcry, James I of England was forced to revoke all existing monopolies and declare that they were only to be used for "projects of new invention". This was incorporated into the Statute of Monopolies in which Parliament restricted the Crown's power explicitly so that the King could only issue letters patent to the inventors or introducers of original inventions for a fixed number of years. It also voided all existing monopolies and dispensations with [some] exception[s]....
This paper is mostly about how a law came about regarding "projects of new invention" as a political compromise, rather than any particular thought or study about the problem of incentives and innovation.
> One of the most tragic ideas to evolve in this century is the idea of "intellectual property"--that you can own an idea for years, sometimes tens or hundreds of years.
(1) Intellectual property protections didn't originate in the twentieth century. In the U.S., they exist in the original text of the Constitution (https://en.wikipedia.org/wiki/Copyright_Clause), and they existed in other countries well before then.
Of course, the duration of copyright protection has gotten completely out of control. But I think that should be attributed to the ability of copyright lobbyists to influence lawmakers, rather than to the idea of intellectual property itself.
...rather than to the idea of intellectual property itself.
Whereas ISTM the current regime is inevitable, given the existence of "IP" and the legislative means to modify it. It is a money-printing machine for lawyers and executives. If we can be certain of anything, it is that future generations will be plagued by yet more oppressive incarnations of this folly.
EDIT: If "A -> B" and "B is Bad", then "A is Bad".
You're right that the problem is more with the length of terms and abuse of the concept rather than the concept itself.
Most people break copyright all the time and would be rather upset if they knew the full extent of the copyright law. Since selective enforcement occurs, only a few people come to know the true tyranny of the copyright regime, and the public is easily persuaded to allow extensions of the monopoly by fear-mongerers who say "You don't want to see your favorite Disney characters in filthy, compromising positions, do you?! Call your representative now and tell him to protect your childhood!" [1].
"The best way to get a bad law repealed is to enforce it strictly".
I don't think copyright law implies that "ideas" can not be copied. I think it says something about the "expression of an idea". It is always up to the court to decide whether copying was "substantial" and not "fair use".
I agree that both laws and their application have gone too far. I think they should be reformed, not thrown out all together.
There's a third law less often opinioned about: Trade Secrets. Is that a just law or not? Well think about the laws on privacy. Should we have the right to "privacy", which is really a rather intangible thing?
An interesting solution I've heard[1] to reform both copyright (and possibly patent) law is to require compounding annual fees to maintain them. For example if someone writes a new song or book, we could have a short "free" copyright period. After that, creator (or more accurately, the rights holder) would need to pay an annual fee to maintain their copyright. The fee would increase by some percentage each year.
If the value of the work is greater than the fee, then it'd be in the interests of the rights holder to pay the fee and maintain the copyright, for example to be able to license it out to others. If it's not, then the copyright would expire and the work would enter the public domain.
A high enough interest rate for the compounding would ensure that everything is eventually in the public domain. For works that are repeatedly extended, say Mickey Mouse, the public will receive the fees collected for each of the extensions until it enters the public domain.
This also has the interesting effect of incentivizing the creation of new works as there wouldn't be any fees associated with them for the initial term.
There's obviously a lot more details to handle such as having a central registry, inflation adjustments, differentiating between new works and derived works, and how to handle works created prior to the introduction of a system like this. Still I think it's an interesting proposal.
[1]: I don't remember where exactly but probably here on HN.
I liked this concept, but you need to establish what the "unit" of the work is. If I'm a photographer, do I need to pay the compounding fee on each picture I take? I take thousands a year. While George Lucas makes a single motion picture over a year.
The idea that something will enter the public domain once its market price has been established is nice, but my problem with this scheme is that it needs so much fine-tuning. How should the prices increase? Exponentially, adjusted for inflation? Will the prices be much too low for much too long, or will they rocket up at unreasonable rates for some kinds of media?
I think the best scheme for works entering the public domain is modelled on eminent domain. That is, a work may be "seized" (and its owner duly compensated) by a government when the utility to the public of it entering the public domain is great enough.
Obviously there would need to be a lot of structure around it, because it's going to happen all the time. There might have to be a registry of copyright owners. There might also be taxes or regular charges levied as in your system.
The photographer is in over her head. She owns her photo, but she doesn't own the "idea" of the back of Rod Stewart's head. Not even Rod Stewart owns that "idea."
And while we can't just copy her photo, we can take another photo that expresses the same idea (Stewart's head). And since there aren't that many way to photograph Rod Stewart's rear-dome, the photos would have to be essentially identical for any copyright infringement. The photos here are not identical: the light is different, the hair is messed up differently... it looks like a losing case.
When I viewed the side-by-side comparison, my reaction was "wow, she actually has a point!" not "this is a frivolous suit." Both photos show Rod with a black, long sleeve garment, show only his head, neck, and left shoulder, and have not dissimilar lighting and hair styling.
The image of the back of his head became memorable to people primarily not becase of that particular photo, but because of the music on the album. So, I think, Rod Stewart himself is primarily responsible for making the image famous. He created this cultural artifact / meme.
Sure, but legally speaking that's just very nice of him to promote someone else's product (the image) with his music. It doesn't affect the ownership of that image.
> But suppose that a Web site, awesomestuff.com, ran an item that said something like “This piece on copyright is a great read!” with a hyperlink on the word “piece” to my article’s page on The New Yorker’s Web site.... Effectively, awesomestuff.com has stolen content from newyorker.com, just as the compiler of “Most Thoughtful Essays” stole content from me.
This has to be the single most wrong-headed thing I've seen written on hyperlinks. To suggest that telling people where they can find an article is morally equivalent to copying that article and distributing the copies ... to paraphrase Charles Babbage, "I am not able rightly to apprehend the kind of confusion of ideas that could provoke such a proposition."
I can understand how he would see 'framing' as copying a website into another page. But he goes on to argue that we accept this form of 'copying' because of the same 'a visual change is experienced as a physical change' mumbo jumbo. No. Clearly, we accept this form of copying because framing the whole page still shows the page's adds and only increases revenue for the 'copied' site. There would obviously be legal ramifications if you embedded the page into your site then removed their adds and replaced them with your own.
Yeah, that paragraph basically blew the entire article for me. The analog version would be stating that including the Dewey Decimal(1) reference for another book in my book/article is the same as violating copyright or stealing. Absurd on all possible interpretations.
(1): or any other short description that would allow me to locate the specific book being referenced.
> Either way, when you’re reading a linked page, you may still
> be “at” awesomestuff.com, as clicking the back button on
> your browser can instantly confirm. Effectively,
> awesomestuff.com has stolen content from newyorker.com, just
> as the compiler of “Most Thoughtful Essays” stole content
> from me.
"At" is the wrong word. The browser is requesting content. If it's requesting content from awesomestuff.com that only newyorker.com has permission to copy, that's a copyright problem.
This is a very odd metaphor for a journalist to mistake. It's as if any reference they make in a piece is violating the copyright of the referenced item. Is reference that difficult of a concept to grasp?
You know, we put so much damned effort into getting the 'net to have documents that could trivially link to other documents and be available to everyone, it seems unsurprising that it is difficult to retrofit it with copyright protection measures.
In this example the browser is requesting NewYorker content from newyorker.com, which serves it. It is not requesting that content from awesomestuff.com. Awesomestuff.com does NOT serve newyorker content, only an address to it.
So who's doing the copying here? It is the person who is using their browser to copy content from newyorker.com to their PC so it can be displayed there.
Heh. Without knowing the images, I guessed that the old version was a blurry old 35mm photo and they wanted something higher resolution. That would be an interesting question - is a technically superior, but similar looking, image still a copy? But that is not the case here.
If the former were a trade mark, I think the original photographer would win easily (although perhaps not for $2.5 million). The new picture is obviously done to replicate and look like the old one.
But copyright? I dunno. Seems like a derivative work, though.
So, the original purpose of copyright was to ensure that content creators were encouraged to release things for the public at large. This in turn is a two-part process: first, creating content for consumption, and second, distributing that content.
I don't think it should be even slightly controversial to suggest that we've democratized and solved the second part of that problem (provided things like net neutrality pass, but that's a larger issue). There is no reason that a creator who wants to put out content into the public domain can't do so (again, barring government censorship or what have you--arguably not even then) in a way that is likely to be preserved into perpituity.
It's the first part of the problem which is what people will wring hands about, refusing to believe that creators would ever spontaneously decide to make something for no apparent and immediate payoff (fanfiction and deviant artists and HN commentators clearly notwithstanding) and put it out there.
With things like DA, with Patreon, with Kickstarter, with Steam Greenlight, with Amazon and everything else, it's clear that we're almost done solving the first issue--again, if you believe it's an issue at all.
I feel like you're putting this in a way that ignores the historical context in which copyright arose. Copyright came about in response to too much copying thanks to the printing press. The ultimate purpose of copyright was to encourage the progress of the arts and learning, yes — but the immediate purpose was was to make sure that authors would be fairly compensated for their work, instead of printers being able to just take any work they could get their hands on and profit off it without the creator of the work having any say in how his work was used or claim on the fruits of his labor. The idea was that authors were skilled workers practicing a valuable craft, and that the mere fact that distributors could ignore them in practice did not mean they should be entitled to do so with impunity.
Nobody ever though that nobody would create anything without copyright. The idea was simply that skilled creators were not being duly compensated for their work, and that if they were fairly compensated, they would have more time to devote to creating as well as more incentive to continue.
The writer doesn't seem to understand the concept of natural rights. They aren't inalienable because we declare them to be so, they are inalienable because it's actually impossible to deny people these rights.
The First Amendment protects individual expression, for example, because it’s in society’s best interest to have a robust debate—not because each person has a right to say what he or she thinks simply by virtue of being human.
In reality, by virtue of having the ability to speak, humans do have a right to say whatever they want. Oppressive regimes can certainly take steps to punish people for speaking their minds, but it's pretty difficult to stop someone from voicing an opinion in the first place.
So the right to make copies was imagined by the Framers as a way to encourage the writing of books by individuals for the good of an educated citizenry. But, if you are a natural-rights person and you think that individual rights are inalienable, then you don’t recognize the priority of the public domain. You think that society has no claim on works created by individuals.
Once an individual chooses to share an idea, anyone who has that idea can naturally share it. Copyright is not an inalienable right.
Right, copyright is not an "inalienable right". It is a law. We can and maybe should argue against that law as it currently stands. What I think we should argue against is that whatever created Mickey Mouse, or whoever BOUGHT that copyright, should have the right for it for 100 years. It's a bit like saying whoever built the fortress can rule the land from now on. But check-out Carl Barks. Does he or his estate own the copyright to his masterful art:
You may have seen a lot of bad cartoons from Disney but Barks was one of he most important visual artists of 20th century, if you can get to his works. Disney doesn't seem to advertize his works apart from anybody else for obvious reasons.
" ... when you’re reading a linked page, you may still be “at” awesomestuff.com, as clicking the back button on your browser can instantly confirm. Effectively, awesomestuff.com has stolen content from newyorker.com "
This I think is based on misunderstanding of how http and the web work.
Somebody at awesomestuff created a link to newyorker.com. They basically just told you the ADDRESS of newyorker.com. They created a ROAD-SIGN and YOU followed that. You clicked the link and the website newyorker.com willingly served you the content. That content was NEVER COPIED to the server at awesomestuff.com.
So only thing newyorker could accuse them of doing is telling people their website address. If they have told you that address and you write it down and copy that surely that is not copyright infringement because New Yorker has NEVER CLAIMED they own the right to their website address. It is public information.
That I think would be fraudulent misrepresentation of who owns the content in question. In practice nobody would do that a thousand times and if they did it would still not be "copying". They would have had to pay for all the "copies" of the paper from which they cut off the article. They would have paid for all those "copies" and thus they would have the right to distribute them (unless a private contract prohibited that).
Misrepresenting the origin of the content could be considered fraud. But if you never implied that you created that content then maybe not.
We've had copyright for over two hundred years, so we can judge the difference between before and after.
In any artistic field (music, painting, literature, sculpture...) the best works were produced before copyright existed.
The best and most interesting output of the human mind since 1790 were not in the arts but in the hard sciences, outside of the realm of copyright.
It's understandable that "copyright holders" would fight hard to maintain the status quo or even extend protections indefinitely; what I find baffling, and truly depressing, is that everyone else lets it happen.
> The best and most interesting output of the human mind since
> 1790 were not in the arts but in the hard sciences, outside
> of the realm of copyright.
This is the most utterly ridiculous claim I have heard in a long time, not least because what constitutes "the best works" of art is entirely subjective.
An opinion isn't right or wrong, it just is, no matter how strongly you assert it. And it certainly is open to ridicule: would you take seriously someone claiming, with absolute sincerity, to be the sovereign ruler of the Gumdrop Kingdom?
I couldn't get past the author claiming that linking to an article in its published location is somehow akin to stealing the article and publishing it in a compilation book without permission.
It's more like pointing someone to a bookstore and saying "check out this great book".
Ultimately, the biggest issue with copywrong is this: on a rather fundamental level computers operate by copying, not moving. I mean: even the MOV instruction on most (if not all) instruction set copies data without overwriting the original. RAM (tends to) have non-destructive reads. The processor caches everywhere. Etc.
Sure, you could potentially talk about fixation as opposed to temporary copies - but that boundary is fuzzy and getting fuzzier all the time. What happens when the process gets paged to disk? What happens if the process crashes and dumps a crash report? Or worse - when memsistor RAM starts becoming available?
Also, there's a related problem as to whom takes responsibility for a machine doing something. What happens when you walk by a security camera with a copywronged painting? If you visit webpage A that contains an iframe pointing to website B containing copywronged work, who is responsible for the copywrong infringement? Is it you? You own the computer. But you never did anything that you could have known was a violation. Is it the person who wrote your web browser, as they were the person who wrote the instructions to follow iframes? Is it the person who wrote webpage A? But they didn't ever actually do anything infringing - they provided instructions which if followed without checking copywrong restrictions would potentially be a violation.
Personally, the entire idea of "intellectual property" is fundamentally misguided, but that is another matter.
> I have granted The New Yorker an exclusive license to the article for a limited period... If, a year from now, someone else, without my permission, reprints my article in a book called “The Most Thoughtful and Penetrating Essays of 2014,” I can complain that my right to make copies is being violated and, if the court agrees with me, legally suppress the book... Although not the author of this piece, you, too, would likely feel that the publisher of “Most Thoughtful Essays” was a bandit.
> But suppose that a Web site ran an item that said something like “This piece on copyright is a great read!” with a hyperlink on the word “piece” to my article’s page on The New Yorker’s Web site. You wouldn’t think this was banditry at all. You would find it unexceptionable.
I would argue that the latter seems unexceptional because it is qualitatively different than the former.
If I pick up an essay from the New Yorker and print it in a book that I then sell, I am depriving the New Yorker of revenue, because now there is a way to get it that doesn't involve paying the rights-holder (the New Yorker). This -- taking money out of the hands of the people who own the content to put it in my own -- is what copyright is designed to stop.
If I link to an essay on the New Yorker's web site from my own web site, I am not depriving them of revenue, because you can only read it by following the link, and the New Yorker is free to put up any financial barriers -- paywalls, ads, etc. -- between you and the endpoint of the link that they wish. So they're not losing the opportunity to sell you the content; I'm not taking money out of their hands. And maybe my endorsement that there's good stuff to be found behind the paywall will be the factor that convinces you to pay up.
Or, alternately, they can decide to forgo the money they'd make by forcing you to subscribe in the hopes that they can make more money by showing ads against the content instead. But the crucial point is that it is their decision, not mine. Whereas if I put the essay in a printed book, and then sold it, I am making the decision for them.
Where all this breaks down, of course, is in cases where I, the linker, reprint large portions (or all) of the article on my own site in addition to just providing a link. In that case, yes, I am depriving you of revenue, because the reader no longer has to click through to get the meat of the story. But traditional copyright law covers this scenario too -- I don't have the right to do that. All I'm allowed to do by the doctrine of fair use (http://en.wikipedia.org/wiki/Fair_use) is reprint a small snippet. If I put up the whole thing, I'm violating your copyright and you can and should come at me with guns blazing.
Indeed, the two are very different. Later on the author says this:
>The point of Peter Baldwin’s fascinating and learned (and also repetitive and disorganized) “The Copyright Wars” (Princeton) is that the dispute between analog-era and digital-era notions of copyright is simply the latest installment of an argument that goes all the way back to the Statute of Anne.
This is merely a way of linking to the book. At no point has anybody ever thought of this as 'theft' of the book, it is merely citing it as a reference. That the hyperlink makes this more convenient should please the original author. If the article had linked to the book maybe more would have been sold as the reader wouldn't need to go and work out to buy it for themselves.
Later on in the article, the purpose of copyright is further discussed, specifically the "moral" side of copyright.
For example: "Samuel Beckett’s restrictions on the staging of his plays is a well-known example of the exercise of copyright as a moral right." and "...although the buyer of a work of art may destroy it, he or she cannot deface or otherwise alter it." as well as the inability to copy or publish out of print books. None one of these is referring to the money making side of copyright, but rather to the "moral" side that you own your creation completely, and others only get to "consume" it.
EDIT: Note that the rights cannot be transferred, but can be waived. So if you're buying visual art with the intention of defacing it then you can ask the artist to sign a waiver form as a condition of the sale. Personally, I think this is reasonable.
It's kind of a weird law, as if that kind of thing used to happen frequently to artists. I think there should be another law for that. Ah, more laws :-)
Yes. This has long been part of copyright law in most of the world, and in the US since 1989 when the US amended its copyright law to match the rest of the world so that it could join the Berne Convention.
This reflects an interesting philosophical difference in how Europe and the US historically view creative works.
The historical philosophical justification of copyright in the US is the "fruits of your labor" theory of ownership. If by your labor your make something, you should own that thing. This leads to the US taking a more utilitarian view, and so US copyright law was only concerned with "economic rights". You created a work, so you owned the rights to make and sell copies of it. I've not really studied the classical philosophers, but I'm told that the US view is heavily influenced by John Locke.
The historical European view is that a work of art is an extension of the creator. The philosophical justification for copyright under the European view is self ownership and self determination. European copyright law therefore not only protects economic rights, but also "moral rights". If you deface a work of art, or if you falsely attribute a work of art, that is an attack on the artist himself. I'm told that the European view is heavily influenced by Georg Wilhelm Friedrich Hegel.
Article 6bis of the Berne Convention requires recognition of moral rights:
(1) Independently of the author's economic rights,
and even after the transfer of the said rights, the
author shall have the right to claim authorship of
the work and to object to any distortion, mutilation
or other modification of, or other derogatory action
in relation to, the said work, which would be
prejudicial to his honor or reputation.
(2) The rights granted to the author in accordance
with the preceding paragraph shall, after his death,
be maintained, at least until the expiry of the
economic rights, and shall be exercisable by the
persons or institutions authorized by the
legislation of the country where protection is
claimed. However, those countries whose legislation,
at the moment of their ratification of or accession
to this Act, does not provide for the protection
after the death of the author of all the rights set
out in the preceding paragraph may provide that some
of these rights may, after his death, cease to be
maintained.
(3) The means of redress for safeguarding the rights
granted by this Article shall be governed by the
legislation of the country where protection is
claimed.
The US was not willing to go that far, so when the US introduced some moral rights via the Berne Implementation Act of 1988, it did so in a limited fashion--it only covers works of visual art (which is a narrower category than most people would expect--see note below). It is generally believed that it was meant to be just enough so that with vigorous hand waving one could say that the US met the qualifications to join the Berne Convention.
The US copyright moral rights are in 17 USC 106A:
(a) Rights of Attribution and Integrity.— Subject
to section 107 and independent of the exclusive
rights provided in section 106, the author of a work
of visual art—
(Note: section 107 is "fair use")
(1) shall have the right—
(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the
author of any work of visual art which he or she did
not create;
(2) shall have the right to prevent the use of his
or her name as the author of the work of visual art
in the event of a distortion, mutilation, or other
modification of the work which would be prejudicial
to his or her honor or reputation; and
(3) subject to the limitations set forth in section
113 (d), shall have the right—
(A) to prevent any intentional distortion,
mutilation, or other modification of that work which
would be prejudicial to his or her honor or
reputation, and any intentional distortion,
mutilation, or modification of that work is a
violation of that right, and
(B) to prevent any destruction of a work of
recognized stature, and any intentional or grossly
negligent destruction of that work is a violation of
that right.
(b) Scope and Exercise of Rights.— Only the author
of a work of visual art has the rights conferred by
subsection (a) in that work, whether or not the
author is the copyright owner. The authors of a
joint work of visual art are coowners of the rights
conferred by subsection (a) in that work.
(c) Exceptions.—
(1) The modification of a work of visual art which
is a result of the passage of time or the inherent
nature of the materials is not a distortion,
mutilation, or other modification described in
subsection (a)(3)(A).
(2) The modification of a work of visual art which
is the result of conservation, or of the public
presentation, including lighting and placement, of
the work is not a destruction, distortion,
mutilation, or other modification described in
subsection (a)(3) unless the modification is caused
by gross negligence.
(3) The rights described in paragraphs (1) and (2)
of subsection (a) shall not apply to any
reproduction, depiction, portrayal, or other use of
a work in, upon, or in any connection with any item
described in subparagraph (A) or (B) of the
definition of “work of visual art” in section
101, and any such reproduction, depiction,
portrayal, or other use of a work is not a
destruction, distortion, mutilation, or other
modification described in paragraph (3) of
subsection (a).
(Note: this excludes "any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication" and "any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container", and it excludes any "work made for hire")
(d) Duration of Rights.—
(1) With respect to works of visual art created on
or after the effective date set forth in section
610(a) of the Visual Artists Rights Act of 1990, the
rights conferred by subsection (a) shall endure for
a term consisting of the life of the author.
(2) With respect to works of visual art created
before the effective date set forth in section
610(a) of the Visual Artists Rights Act of 1990, but
title to which has not, as of such effective date,
been transferred from the author, the rights
conferred by subsection (a) shall be coextensive
with, and shall expire at the same time as, the
rights conferred by section 106.
(3) In the case of a joint work prepared by two or
more authors, the rights conferred by subsection (a)
shall endure for a term consisting of the life of
the last surviving author.
(4) All terms of the rights conferred by subsection
(a) run to the end of the calendar year in which
they would otherwise expire.
(e) Transfer and Waiver.—
(1) The rights conferred by subsection (a) may not
be transferred, but those rights may be waived if
the author expressly agrees to such waiver in a
written instrument signed by the author. Such
instrument shall specifically identify the work, and
uses of that work, to which the waiver applies, and
the waiver shall apply only to the work and uses so
identified. In the case of a joint work prepared by
two or more authors, a waiver of rights under this
paragraph made by one such author waives such rights
for all such authors.
(2) Ownership of the rights conferred by subsection
(a) with respect to a work of visual art is distinct
from ownership of any copy of that work, or of a
copyright or any exclusive right under a copyright
in that work. Transfer of ownership of any copy of a
work of visual art, or of a copyright or any
exclusive right under a copyright, shall not
constitute a waiver of the rights conferred by
subsection (a). Except as may otherwise be agreed by
the author in a written instrument signed by the
author, a waiver of the rights conferred by
subsection (a) with respect to a work of visual art
shall not constitute a transfer of ownership of any
copy of that work, or of ownership of a copyright or
of any exclusive right under a copyright in that
work.
"In the case of many books and photographs, the rights holders are unknown; in other cases, it’s expensive to track down the heirs or the legatees or the firms, possibly no longer in existence, to whom the copyright belongs."
There's people who take advantage of this. I've seen more than a few people claiming they own the copyright, while when asked to provide proof they never respond. Ebay is loaded with people who are falsely claiming copyright protection. Ebay seems to take the stand, "Well this dude was the first one to scan it to PDF, he must own the copyright?"
And using the label "Silicon Valley" to refer to businesses that are antagonistic to strong copyright? Companies like Adobe? Apple? Electronic Arts? Oracle?
I do not think that new image is a copy of an old one. Look at the flow of hair - totally different, and unlikely to be photoshopped from one to another. It is way easier to take another picture of the back of Rod Stewart's head and my guess would be - this is what was done. The picture and style is obviously a nostalgic reference to an old album cover art, but the picture is most likely _new_, not a copy or derivative.
I would say that Rod Stewart may get his hair photographed as many tmes as he damn pleases and case does not really have merit (IANAL etc etc).
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Ideas are intangible, not property, and someone can think the same thing as you without ever having met you or heard of you. A more accurate term than "intellectual property" would be a "short, government-protected monopoly on an idea". But we call it property, and after many years of calling that, it insidiously starts seeming to us like real property, and not the temporary monopoly it really is.
There's room for short, temporary monopolies. As the framers realized, copyright and patents are critical to fostering innovation and culture. Unfortunately, "short" went from being a very reasonable few years, to a slightly less reasonable 20ish years, to now, where if you publish a work today the chances of it being available to the public within 150 years are slim. Do a grandchild's grandchildren deserve to lord over something created by a dusty ancestor centuries ago?
In a strange and sad way, our IP regime today means that individual authors are unlikely to be remembered by history 100 years from now. Look at Project Gutenberg or Wikiart: hundreds of people from all over the world volunteer to lovingly scan, transcribe, format, categorize, and distribute works from the last few centuries. They do this because that work belongs to the public now, and their efforts keep the memories and impact of those works and authors alive. Do you think anyone will do the same for your work 100 years from now on the pain of legal threats and huge fines, or is it more likely it'll fade into oblivion?