On 5/21/07, Quentin Hartman <[EMAIL PROTECTED]> wrote:
How would you propose that this opt-in system be implemented? Surely not through some sort of registry process. Not only could that be made sufficiently difficult to effectively exclude small organizations and individuals, but as the patent system has proven, there would be far too few available resources to keep it maintained and valid.
The way it worked until 20 years ago would still work well now. Two centuries is a pretty fair test period. :-) Then, all it took to create a copyright was to put a copyright notice in the work, containing the copyright symbol, the rightholder's name, and the city and state in which he lived. There was no requirement of registering your copyright unless you wanted to assert a relevant right in court. Then you had to first register your copyright with the Copyright Office, which also got you your Library of Congress ISBN number. As a matter of practice, book publishers almost always registered copies as a matter of course to get the ISBN number into the book itself. But the important difference was that you automatically waived copyright and put your work in the public domain if you published it without a copyright notice. And that is what led to things like the Creative Commons licenses, the Gnu FDL, etc. Right now it's pretty insane. You even have a copyright on your scribblings on wall calendars, rough notes you throw in the trash, letters you send to people, legal documents you file in court, on and on and on. It's created the kind of situation where the law has to be widely ignored for practical reasons, and that is a telltale symptom of a bad law.
I still think I favor the opt-out system, but the only workable opt-in system I could imagine is one where a work simply had to have a copyright notice attached to it to be copyrighted. It seems to me that a system like that is only semantic nuance away from the current opt out system. I suppose that at least disambiguates an unmarked work, but then how to handle "pre revolution" works that are unmarked? It seems that this would create a whole new class of abuses wherein a work could remove a mark from a work and re-use it without the authors consent. When challenged, the infringer could then claim that his copy was obtained without a mark and theuthor must have made a mistake. In that case, the author would have little recourse.
Like I said, the opt-in system worked pretty well for some 200 years. It used to be when I was working on a book, I would just routinely put a copyright notice on the draft manuscript. That got even easier when word processors became affordable and you could put the copyright notice in a standard footer that appeared on every page. I can't say the situation you describe never happened, but works in the public domain -- the argument that the wrongdoer would have to make -- rarely have any great commercial value because anyone in the world can copy and redistribute them. The more troublesome situation would be where someone claims the work of another as his or her own and slaps their own copyright notice on it. Then both sides might have a financial incentive. But it's pretty easy for an experienced writer to tell whether a work is consistent with one author's style or another. And there are of course experts in that field who can testify and show precisely why the writing styles are different in a way that would be believed by the court. Not that there wouldn't be an expert on the other side. But the chances are also very good that the true author would have further evidence of authorship, such as copies of the manuscript, drafts, research notes, testimony of interviewees, friends who read the work, etc. The other side would look a tad naked without the equivalent.
In formulating my thoughts on this I almost convinced myself that you are correct, but it still seems to me that the current opt out system gives balances the rights of the authors vs. the public appropriately by defaulting to the rights of the author. At least, they would if the terms were reasonable at 5, maybe 10 years, ando/or were only assignable to "natural citizens" (ie - not corporations ( I think I'm using that correctly...))
Anytime you want to take leadership on abolishing the corporate form of business organization I'll sign your petition. :-) To me, the very notion of fictional beings endowed with human rights is ludicrous. It's rather interesting if you study legal history to learn that for many decades after the revolution, the only corporations that were allowed were those formed for performing public works projects and were required to be dissolved promptly on completion of the work. The American Rebels were not friendly toward the great English "companies" (what corporations are still called in the UK) that were granted the right to establish colonies and exploit the New World. (At least eleven of the original 13 colonies also had laws against lawyers charging fees for their work. :-) My objection to copyrights flows mainly, I suspect, from my somewhat libertarian view of copyrights and patents. They are artificialities, monopolies that exist only because governments have proclaimed them to exist, imposing an artificial scarcity of goods where none would exist in nature, creating artificially high prices for goods. To me it is hilariously comic that one of the international Free Trade Agreements is entirely devoted to the protection of intellectual property monopolies that would not exist but for government interference in free market forces. <http://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm>. Although the Recording Industry of America Association (RIAA) would have us believe that they sue music downloaders only to protect the rights of authors, in fact copyright law was never designed to protect the rights of authors. They were the brainchild of the printers in England who wanted protection from other printers republishing the works they printed. These were the early publishers and they have never given authors a fair share of their publications except in the unusual case of the authors of consistently very commercially successful works, e.g., Tom Clancy. All but a very small percentage of authors of literary works could make more money if they spent the same amount of time driving a truck. And that is largely true in the recording industry as well. A quickly growing number of musical atists are recognizing that the recording industry's deck is stacked against them and are distributing their work for free via the internet using, e.g., Creative Commons licensing, using the free distribution to build popularity and to build demand for live performances where they can actually make some money. The Grateful Dead were somewhat ahead of the crowd in boycotting the recording industry. :-) (You might enjoy checking out Jamendo if you haven't run across it yet. <http://www.jamendo.com/en/>. Well over 3,000 albums and growing. If you're into good electronica, I heartily recommend checking out Vate, particularly his Volk album. <http://www.jamendo.com/en/artist/vate/>.) Personally I think most of the economic justification for copyright disappeared as the internet has grown and matured. It no longer costs an arm and a leg to publish a work. Even the dead tree versions are far less expensive to produce now with authors providing manuscripts in digital form. Far more authors have opportunities to publish now through publish-on-demand services that avoid the huge investment of printing large quantities of books at once. <http://en.wikipedia.org/wiki/Publish_on_demand>. To boot, most people who have their works published never did it for the money anyway. To me, the current length of a copyright is only the most outrageous aspect of our present copyright scheme. They are the last vestige of the Medieval English Crown's dispensations of monopolies. The Statute on Monopolies enacted by Parliament during the reign of Queen Anne abolished most most of them, although some survived, e.g., the grants of exclusive monopolies for companies to exploit defined portions of the New World under Royal Charters and Letters of Patent. One of the things not often taught these days is the key role the Crown's first charters to joint-stock companies (corporations) played in the revolutionary period. The first joint-stock company, allowed to solicit investments for which the investors would have no liability beyond the potential loss of their investments, was the British East India Company, which was granted a monopoly on exploiting trade in India. <http://en.wikipedia.org/wiki/British_East_India_Company>. And of course there was the Royal tax on all products sold by the company. The scheme quickly spread and many other such Royal Charters were granted applicable to other areas of the world, beginning the English colonial period. The Crown quickly became highly dependent on the revenues produced by the taxes, and routinely raised them as reasons for spending more money presented themselves. It became Crown policy that the Royal Navy and colonial governors were charged with suppressing the import of goods into colonies that competed with the great company's products, regardless of whether they came from an area of the world in which the English had not yet established colonies administered and exploited by the great companies. The cumulative weight of the taxes thus imposed became highly burdensome for colonists around the world, leading eventually in North America to revolutionary slogans such as No Taxation Without Representation. Colonists' attempts to import goods without paying the tax led to the development of the early American shipping industry, which supplied a growing black market at home in untaxed goods. And of course they faced impoundment of their goods and ships whenever the British Navy or colonial governors could find them. And here we find the genesis of the Free Trade movement that eventually held sway at the Constitutional Convention and now dominates the world through the international Free Trade Agreements. One of the taxes targeted by the revolutionaries was the Tea Tax, so we find the event that triggered the Revolutionary War, the Boston Tea Party, dumping the cargo of a British East India Company ship into Boston Harbor, a carefully targeted action aimed at the first corporation established by the Crown. Short version: corporations, monopolies, and taxes were not generally held in high regard when the revolutionaries sat down to draft their Constitution. The new States had already all but outlawed the corporate form of business organization in their state legislatures during the short period when States rather than the federal government held power under the Articles of Confederation. Most delegates were opposed to continuing any of the monopoly types that had led to the Revolution, but Thomas Jefferson was eventually persuaded by James Madison that retaining patents for a limited class of inventions and copyrights for certain types of publications might promote economic growth in the cash-strapped young nation. The compromise struck was that Congress would be allowed to decide whether copyrights and patents should be allowed. So we find in Article I section 8 the language: "The Congress shall have power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The limitation of copyrights and patents to those that would "promote the Progress of Science and useful Arts," in historical context I think, should be understood as limiting copyrights and patents to those with potential to have commercial value. The Congressional power exists only for that purpose. While that interpretation still gets lip service in the courts, I have found no case decision directly holding that non-commercial inventions or literary works are beyond the reach of the Patent and Copyright clause. But I think it an interesting case that could be brought because it could raise the question of whether writings, for example, that have no intended commerical purpose can be copyrightable at all, let alone automatically copyrighted through an opt-out approach to the law. A related argument could be made that because the prohibition against monopolies has been implied from the Constititution's Commerce Clause, those monopolies granted that are not authorized by the Patent and Copyright Clause are unconstitutional. Indeed, the courts have long held that patents and copyrights are exceptions to the law against monopolies, so the conclusion that monopolies for non-commercial works and inventions are prohibited because they lie outside the exception to the prohibition of monopolies. Which is but to say that I see reasonable arguments that the opt-out approach is unconstitutional.
It does create these sorts of ambiguities, but I think that these problems _could_ be sufficiently addressed on the front end (by the click-thrus you mention) if the issue were given sufficient thought. It still seems to me that the opt-out system is the least of several evils, and goes the furthest to protect authors without undue strain on anyone.
I agree that the opt-out approach does have some advantages and at least a superficial attractiveness. But a law that must be ignored for normal life to go on seems to invite disrespect for the law. And as to my examples, I think it plain that the problem cannot be fixed at the front end without requiring people to waive the requirement of attribution. If there be a fix, it would need to be at the back end, e.g., by outlawing the mirroring of web sites and the indexing of sites by search engines and their bots, for example, and by rewriting wiki and other software used for syndication purposes so all relevant attribution information is syndicated as well. Of course another option is to return to the historic opt-in system that tells the world nothing is copyrighted unless there is an explicit and standardized copyright notice on it. E.g., search engines can be programmed not to retrieve and index any web page that contains such a notice. I note that Google is now facing several lawsuits by news organizations alleging it violated copyrights by retrieving and indexing copyrighted pages. It also faces similar suits involving its Google Books project. But where would the Web be if the search engines have to go? One reductio ad absurdum of the opt-out system, I think, is that making even a single copy of a web page is a copyright violation absent express language allowing it. But how can your computer render a copy on the screen of your computer without violating that copyright? Certainly if we are to remain with the opt-in system, a far more nuanced approach will be necessary. BTW, please let me know or just stop responding when or if you tire of this discussion. I realize that it probably doesn't interest others as much as it interests me. :-) Best regards, Marbux _______________________________________________ EUGLUG mailing list [email protected] http://www.euglug.org/mailman/listinfo/euglug
