Lessig Challenges The Constitutionality Of An Opt-Out Copyright System
from the fight-for-the-right-to-free-content dept
When professor Larry Lessig lost his Supreme Court challenge ("the Eldred case") concerning the constitutionality of Congress continually extending the length of copyright, he seemed to spend over a year kicking himself for the mistakes that he believes he made in arguing the case. However, it was only a matter of time before he came back fighting, using the results of the Eldred case to his advantage. He's been writing some posts on his blog about his latest case, Kahle vs. Gonzalez, which actually uses the specifics of the ruling in the Eldred case not to focus on copyright extension, but to question the constitutionality of switching to an "opt-out" system of copyright. For years, copyright was an "opt-in" system. If you wanted to get a copyright, you needed to register. However, in 1976, the law changed to make it opt-out. That meant that any new creative work was automatically considered covered by copyright. While you could register it for additional protections, you didn't need to. That flipped the equation, taking a ton of content out of the public domain and covering it by automatic copyright -- something that Lessig and Brewster Kahle are now arguing goes against "the traditional contour of copyright protection." This is important, because the Supreme Court's decision in Eldred focused on that very test. While it may be a while before any final results are in, if the case goes in favor of Kahle and Lessig, it could mean a huge change in copyright law. Some may say it would just shift the law back to what it was 30 years ago, but the changes in technology and the means of publishing would suggest that the impact would be much more far reaching than simply turning back the clock.
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The Internet
That's an understatement. 30 years ago, the internet didn't exist. Given the proliferation of publishing on the internet, an opt-out system makes sense. If people had to submit everything that they published on the internet to the copyright registry in order to have any copyright protection, the copyright registry would be completely overwhelmed. It would be far worse than the problems currently facing the patent office.
Of course, they could just raise the cost to register, but that would mean that individuals would not be able to protect their personal web pages, leaving the advantage to the corporations.
The current copyright system might have problems, but that doesn't mean that we should just take an axe to it.
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Re: The Internet
It is absurd that a copyright should extend beyond the life of the creator of the work. Constitutional or not, the so-called "opt-out" system of copyright law is a good thing, especially for starving artists like the songwriter in your local band. However, the scope of what may be copyrighted definitely does need addressing.
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Re: The Internet
i disagree. the internet makes publishing a breeze now. with the number of web "publishers" increasing daily, the odds of "infringement" become more and more likely. with millions of blogs, comments, and other posts, all of which are automatically copyrighted, anyone could technically claim infringement on just about any work.
opt-in copyright means you can borrow and share by default, where as opt-out copy right means you have to take steps to free up rights to your work (i.e creative commons). i would assert that 80% of the material available on the web is not really worth copyrighting and 80% of the people with something posted online wouldn't care if someone made fair use of their work.
here's an example:
i have a a bunch of crackpot theories that i discuss in various forums like slashdot or techdirt or post to my own personal blog. if someone sees what i say and makes observations of thier own then they should, according to copyright law, cite my work as their basis. right now i am a nobody and none of my writing inspires anyone, and posting to public forums and my own website costs me nothing. if someone uses my ideas to make some money, who really cares?
if i were to decide to become a consultant or a novelist, all of that writing would suddenly become a real asset to me. since i don't have to register my work as copyrighted, i can now troll other writers with similar ideas (and no money) and try to squeeze them for rights infringement.
if i had to register my copyrights, then i would have to pay to register my copyrights BEFORE i could squeeze anyone... forcing me to pick my battles and invest more into my ideas to make sure that my claims to the ideas are legitimate. even a nominal fee would force most people to reconsider the value of that work.
a lot of what is posted to the internet is freeform discussion, fan service, or editorial/opinion that is wonderful for discussion, but not necessarily worthy of copyright.
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Aim for the target
And what would it really accomplish? It would benefit the people Lessig were originally targeting at the expense of who he (presumably) was hoping to assist. That is unless his point was to win a case against the copyright system without regard to who suffered the consequence.
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Ok lemme get this straight...
Then again to fix it'll take a total rewrite of the entire system. But wouldn't that be good? I mean the world itself has changed a LOT thanks to the internet, I just wonder if humanity can still adapt like it used to. I still think Darwin is spinning in his grave fast enough to make a perpetual motion machine now though.
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Internet
The devil is in the details, of course, but does that mean that someone would have to submit each and every blog post and artilcle on their site to the copyright office? And if they failed to do so for each and every one could I, for example, setup a MikesDirt site and copy articles at will?
One of the prior posters is right. All this seems to do is dismantle protections for the majority of us, while ensuring that those with the time and money (e.g. corporations) have all of THEIR works protected.
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Re: Internet
I'm sure it could be set up so that you could just copyright all of the content, now and future, for a site. But, if you want to just create MikesDirt, go ahead. I never understand why people always insist that we'll sue them if they copied techdirt. There are at least 6 sites out there right now that copy every post on Techdirt moments after it's posted, pretending to be their own site, and I just find it amusing. No one goes to those sites. Why would they? It's a waste of effort by those who spend time making those sites. They add no value and therefore no one bothers to visit them.
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re: OK lemme get this straight...
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if you copied techdirt articles
maybe... the copyright thing should turn back, because why is it so bad that people put comedy central clips on youtube.com? The credit goes to the show...
passing those stories by word of mouth, they are copyrighted'
so if you made a mikesdirt site and copied techdirt, BUT gave them credit (plagarism is different than breaking copyright) it SHOULD be ok.
imo if i give credit to playboy for putting a picture they took on a site of mine, itshould be ok. they get credit for authoring the media. copyright is just greed.
too bad they didnt copyright the bible 2000 years ago.
wouldnt the world be a little different.
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Re: if you copied techdirt articles
With copyright protections, however, Mike has a halfway decent chance of suing my butt, or at least getting an ISP to take down the site containing his ripped off content.
Don't get me wrong. I thnk CR terms need to decreased, not increased, and preferably down to something like 5-7 years or so. But in this case, Lessig is barking up the wrong tree.
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hold on a minute
eg his blog entry on Google Print for libraries at
http://www.lessig.org/blog/archives/003140.shtml
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treatiies require opt-out
It's even more important today, with the Internet, that basic copyright law be more or less uniform across nations.
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Dead people don't need copyright protection. The insanity just has to stop.
IANAL
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A simple opt-in system where you have positively declare your copyright, and hence identify your work and set a clear date for others to work with regarding when it *does* become public domain, could only help the situation. The poor starving artist can figure out how to sign his work and add the little © to it.
Everyone who cares about copyright should already be doing this, so it will be no large burden and the fact that you can just declare it means that there will be no greater load on the copyright offices.
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here's an Idea
Now if something NEEDS to be in the private domain, you HAVE to OPT in for that, for example If I were in a band and we release a song if I choose not to opt in for private domain anybody out there can use that song for whatever purpose they want, royalty free etc etc etc. This includes P2P networking and the such. IF however I opt in on the privatization of it, then any use has royalties attached.
In this model, (at least as far as music is concerned) we kinda kill two birds with one stone here as it would put the artists directly in control of their work eliminating the need for the RIAA/MPAA. Also it would be copyright reform.
Or here is another Idea, how about we just move everything over to Copyleft?
I know both of those suggestions need work, but I am sure with the proper NON government think tank on the job we can find a solution that will make everyone happy.
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Re: here's an Idea
I think that you're looking for another term. "Public Domain" specifically means that the work in question has no copyright. Under current law that means that the copyright has expired. It's not clear whether or not someone can deliberately place works in the Public Domain.
It's an appealing idea, but unfortunately is somewhat problematic.
I like the idea that works are automatically copyrighted, but that the automatic rights are very limited. If you want stronger rights, you need to specifically assert them. If you want the strongest rights along with the legal muscle to enforce those rights, then the work needs to be registered.
I also believe that the current greatly-extended copyright period needs to be cut back to the original copyright period. Yeah, yeah, I know. Poor Disney :-P
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Re: Re: here's an Idea
What's wrong with the techdirt community today? :P
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Counterfeit
I'd probably have to disagree with that statement, since I doubt that people would continually take the effort to copy your work and post it on their sites if they have no traffic and no results whatsoever. Further, if those sites are in the domains for other countries (e.g. .ca, .in), then it's entirely possible that they're getting higher traffic than you are in that country off country-specfic search engines, blogs, etc..
And if I'd happened to stumble across their site first, I could just as easily assume that your site is the copycat.
Be that as it may, I sort of thought that's how you'd feel about it, since there's no standard copyright notice on the site... though I also saw there's also no explicit notice placing your content in the public domain either.
BTW, does this mean I can republish your intelligence reports too? Might be a nice little business there... ;)
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A sensible copyright approach
Under the present rules (even without further extensions), a work which says "Copyright John Smith 1980" may still be under copyright in the year 2130. If Mr. Smith was born in 1960 and lived until 2061, his copyright wouldn't expire until 2131. If someone in the year 2100 wants to use the work, and queries the obituaries to discover that thousands of John Smiths have died between 1980 and 2100, would that suggest that the work was or was not still under copyright?
I would propose as a rule that the LC should give out unique ID's free upon request; authors would be strongly encouraged to mark their works with ID's. An author of a work could for a very small fee, within a few years of creating works, submit a list of id's along with the dates of creation and a means of contact. The author would be responsible for maintaining his database entries; should they go out of date for too long, a significant fee would be required to recover copyright.
Works published without an ID would still be eligible for copyright protection, but the registration fees would be much higher (so as to encourage authors to avoid releasing works without ID's).
If a company wants a 100-year copyright on a work which it continues to publish, I won't overly strongly object. But protecting copyrights on works whose publishers have long since gone out of business provides no legitimate benefit to anyone.
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