Fair Use Is Not Enough: Using The 'Copyright Misuse' Defense To Protect Free Speech

from the free-speech dept

Fri, Apr 9th 2010 6:31pm — Mike Masnick

We've written many times about the inherent conflict between free speech and copyright laws. Copyright law is an inherent restriction on free speech. The courts have tried to get around this with two tools: "fair use" as an exception to copyright and the "idea/expression" dichotomy, which is supposed to only allow copyright over the specific expression, rather than the idea (in practice, this is often violated -- such as in the recent decision to ban an unauthorized sequel to Catcher in the Rye). So, that mostly leaves fair use. However, many people have noticed that fair use is woefully inadequate in preventing basic First Amendment abuses.

Justin Levine points us to an interesting paper by David Olson, where he proposes beefing up the basically non-existent "copyright misuse" defense for situations where copyright is clearly being used to stifle free speech against the First Amendment:

The Copyright Act serves First Amendment interests by encouraging authors to create works. But copyright law can also discourage the creation of new works by preventing subsequent creators from using copyrighted work to make their own, new speech. Courts have long recognized this inherent tension, and have also recognized that the conflict should sometimes be decided in favor of allowing a subsequent speaker the right to make unauthorized use of others' copyrighted works. Accordingly, courts created, and Congress codified, the fair use defense to copyright infringement, which allows unauthorized use of copyrighted works under certain circumstances that encourage speech and creation of transformative works. The problem with fair use, however, is that the informational uncertainties and transaction costs of litigating the defense make the fair use right unavailable to many as a practical matter. Subsequent creators are left open to intimidation by copyright holders threatening infringement suits. By decoupling the copyright misuse defense from its basis in antitrust principles and basing it in First Amendment speech principles, the legal protections for fair use shift from theoretical rights to practical rights for many. Copyright misuse has two deterrent features that will allow fair use as a practical right. First, a copyright holder's misuse of its copyrights against anyone can be used to prove the defense of misuse. Second, once misuse is found, the copyright owner loses its ability to enforce its copyright against everyone, at least until the misuse is cured. Thus, by defining as copyright misuse the unjustified chilling of speech that some copyright holders perpetrate, the misuse defense will encourage important speech rights that are currently under-protected.

This is definitely a paper worth reading, even if it seems unlikely to ever be adopted by the courts or Congress. It would definitely be a big improvement over what we have today. It's really too bad how rare it is for courts to actually consider the First Amendment implications of their copyright rulings.

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Filed Under: copyright, fair use, free speech

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Anonymous Coward, 9 Apr 2010 @ 6:35pm

"However, many people have noticed that fair use is woefully inadequate in preventing basic First Amendment abuses. "

What we need is more organized opposition against the IP maximists that control everything.
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Anonymous Coward, 9 Apr 2010 @ 7:07pm

Copyright keeps you from saying something someone else said. I don't really see where it restricts anyone elses free speech. Come up with your own thoughts and there will be no problem.
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Anonymous Coward, 9 Apr 2010 @ 7:15pm

Re:
Ok, 2 + 2 = 4. Now you must think it's five or some other number. If you claim it to be four then there is a problem. If you claim it to be another number then there is no problem.
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Anonymous Coward, 9 Apr 2010 @ 7:20pm

Re:
i smell a corporate AstroTurf employee.
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senshikaze (profile), 9 Apr 2010 @ 7:23pm

Re:
so you are against free speech in other words?
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Anonymous Coward, 9 Apr 2010 @ 8:03pm

Re:
Censorship keeps you from saying something someone else said. I don't really see where it restricts anyone else's lack of free speech. Come up with your own thoughts and there will be no problem.
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Anonymous Coward, 9 Apr 2010 @ 8:23pm

Re:
Freedom of speech is our greatest right. There's a reason why the founding fathers put it first in the list (along with religion and the press). Fining people (or even throwing them in jail) for expressing themselves is the antithesis of a free nation. If I want to express myself in ways that make use of copyrighted works, then in a free country I should be able to. When so much of our culture is locked down in copyright, we need a powerful fair use doctrine to make sure that people are not prevented from expressing themselves. If this means a less robust copyright economy, then so be it. We don't boost the economy at the sake of our freedom.
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Anonymous Coward, 9 Apr 2010 @ 8:32pm

Cured
How does a misuse become cured?
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Anonymous Coward, 9 Apr 2010 @ 8:48pm

Re:
How is that free speech? So we can defend hate speech, but god forbid I repeat what you said. Get a clue.
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NAMELESS.ONE, 9 Apr 2010 @ 10:49pm

tell me what does 120 year copyright do FOR YOU CITIZEN?
nothing. ADN for a long time.
PROVE IT BENEFITS SOCIETY please. I want to see where this will help the disabled and blind get stuff to pass there day due to having poor health or whatever.

AND what does anyone get to invent off if i have to wait 120 years?
HOW long before 99.99999% is invented and hen what?
What then?
yea fair use all right its more like extortion and abuse of societies good graces.
IF terms were 14 years or less any arguments above might ring true but with terms past a humans life time and then some i dont care what all this waaa about fair use.

AGAIN tell me what 120 year copy right terms do for the citizens?

THIS question should only be answered by non actors , non musicians and those not associated to film television and software industries. WE know your lazy ass answers...
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dnball (profile), 9 Apr 2010 @ 11:19pm

And what about the Copyright Clause?
As a copyright mediumist, I think that others who believe as I will thoroughly enjoy Professor Olson’s thoughtful article.

However, the only way the First Amendment can provide the sole policy underpinning for the copyright misuse defense is if the Copyright Clause in Article 1, Section 8 is ignored – which is precisely what Olson has done.

In fact, he subtly disparages the “public policy” basis for copyright law and dismisses the Copyright Clause as one of a number of “competing policies” for copyright law’s very existence [see pp. 45, 46 -- which is as close as Olson comes to even mentioning the Copyright Clause].

The Copyright Clause is not, however, a “competing” policy – it is THE policy justifying the existence of copyright and THE grant to Congress conferring upon it the right to pass copyright laws: that grant being in the body of the Constitution and all and, by the way, unlike the First Amendment, specifically addressing “the exclusive Right” of authors to their writings.

Olson relegates to footnotes 279 and 280 the Supreme Court’s various, clear, and consistent pronouncements that it’s the economic incentive that motivates the creation of new works and which justifies the monopoly rights conferred by the Copyright Clause [which is the SOLE source that justifies – indeed compels – our copyright laws]. But that IS the law that explains why copyright exists -- the First Amendment being silent on the matter.

So … while a potent copyright misuse defense is, in my opinion, a good and useful tool to help level the playing field between creators and users it is doctrinally WRONG to divorce it from the economic rationale for copyright [as reflected in the copyright misuse context by antitrust and anti-competition law] as Olson has proposed. In short, it's quite incorrect, at best, to structure a "solution" if you ignore the "problem."

Because the misuse defense is a plea for equity [even in Olson's view] a court considering the plea must evaluate the copyright owner's interest in the matter -- and because that interest is economic [both doctrinally and as applied to the facts of the dispute] the court must, as a very practical matter, consider the economics of the situation. Which gets us right back to at least antitrust and anti-competition law -- and NOT solely inquiring into how best the goals of the First Amendment can be met.
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Anonymous Coward, 9 Apr 2010 @ 11:56pm

Re:
Dear Anti-Mike

Put down the crack pipe and step away from the keyboard. Thank you.
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Chris Coles, 10 Apr 2010 @ 3:01am

Free Speech is Speech, not the written word.
The whole thing revolves around a complete misunderstanding of the original meaning of Free Speech. Speech is the spoken word, NOT the written word. Speech is speaking the words, not writing them. Writing them produces a formal document that has the power to be repeatedly reproduced by another to use as a means to gain a profit from another's, (the originators), work.

That in turn leads to a recognition that almost everyone is at least one step removed from the process of the creative writer trying to make a living from the written word. Once you remove the right of the creative to earn a fair living from their inspiration, their creative intellect; you destroy their ability to survive as independent individuals in their own community. Is that what you all want to see? The truly creative individual - destitute, living off a begging bowl? Because that is what you get if you take away their existing right to copyright of their original thoughts written down on whatever the medium they use.
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zellamayzao, 10 Apr 2010 @ 6:11am

Re: Free Speech is Speech, not the written word.
The whole thing revolves around a complete misunderstanding of the original meaning of Free Speech. Speech is the spoken word, NOT the written word. Speech is speaking the words, not writing them.

Wrong. Freedom of speech is not limited to the spoken word. It protects written words, spoken words, actions people take towards making a point (like burning flags, you may not like it but its protected under freedom of speech). Freedom of speech is intended to protect the speech that others may find offensive. Its not there to stifle what people may find offensive, be it written or spoken so that peoples feeling wont get it hurt. Its there so that people can hear what they dont want to or read what they may not agree with and the person who said it, wrote it, acted it will be protected.

I agree that using another persons published or even recorded (words can be recorded) works as a means to gain profit for themselves is wrong and that needs to be protected but there are already laws in place for that, its called plagiarism or copyright infringement if you use it in the exact same manner. If you are taking someone elses work and creating a new work using similar themes or ideas you ought to be protected as it is new work. That is what he is trying to say, and it should be easier for the person creating the new work to be protected and not have to jump through so many hoops to do it.
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zellamayzao, 10 Apr 2010 @ 6:13am

Re: Re: Free Speech is Speech, not the written word.
forgive the whole post in italics, missed the end of the quote. First line is the quoted line. Dont want to get arrested for copyright infringement
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Bob, 10 Apr 2010 @ 7:30am

Free speech means your speech, not someone elses
Saying that you have a right to drive a car doesn't mean that you have a right to drive anyone's car. Saying you have a right to play loud music at your house doesn't mean that you have a right to play loud music at anyone's house.

I can't really see how the copyright of my words affects your right to create your own sentences and to truly speak your mind, not echo my mind. If you're definition of "free speech" is copying 80% of some Rush Limbaugh editorial and wrapping the word "ditto" around it, well, that's a pretty lame idea of free speech. I can't see how that's worth defending.
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Anonymous Coward, 10 Apr 2010 @ 8:20am

Re: And what about the Copyright Clause?
And you are dismissing that the First Amendment overrides Article 1, Section 8. Or are you saying that it does not? I'd like to see proof that this is not the case, myself.
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Anonymous Coward, 10 Apr 2010 @ 8:25am

too bad how rare it is for courts to actually consider the First Amendment implications of their copyright rulings.

This is done as a matter or course every time a court is called upon to respond to a defense based upon "fair use". The fact one may disagree with a court's analysis, which must be based upon evidence produced at trial, is no reason to say that the First Amendment goes unexamined in the course of a suit based upon the infringement of a work preserved under copyright.

Copyright misuse is not a "dead" doctrine as the author suggest, just like patent misuse in not "dead". Whenever it does arise in litigation it is in the context of whether or not a copyright or patent holder is attempting to use the protected work/invention in a manner that exceedes the scope of rights actually granted.
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Any Mouse, 10 Apr 2010 @ 8:39am

Re:
In theory, at least. In practice, it often seems to be left on the wayside.
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dnball (profile), 10 Apr 2010 @ 9:07am

Re: Re: And what about the Copyright Clause?
I think you're trying to say that if tension [or outright conflict] arises between a provision in the body of the Constitution and the First Amendment to the Constitution then, in that battle, the First Amendment must prevail.

Under very settled Constitutional jurisprudence, that's clearly not true.

Don't forget: the body of the Constitution is the grant of certain enumerated powers to our federal government while the first ten amendments are limitations on those powers. The "granting" provisions and the "limitations" provisions work together -- none [in your words] "overrides" the other.

What Olson has done is to implicitly posit a different tension -- pesky, overreaching Congressional copyright statutes vs. the First Amendment. In that battle, the First Amendment [he says with awe] should properly win.

But that's not the tension in play when considering the copyright misuse defense - copyright misuse being the attempt to improperly expand the scope of a copyright. The tension in that context is between the Copyright Clause and the First Amendment. In that battle of titans the First Amendment [he says demurely] does NOT win. It has met its match -- not pesky little statutes.

In short, ignoring the Copyright Clause of the Constitution [in fact, demeaning it] while sanctifying the First Amendment to the Constitution is the only way that Olson's approach to the copyright misuse defense can work. That is, divorcing it from the economic motivations and marketplace conduct that animates the Copyright Clause.

I won't address whether the nearly universal academic bias against economic pursuits and in favor of unfettered speech may have played in Olson's formulation of his approach. I will repeat the cliche that when you come to a "problem" with a particular mindset the solutions you come up with are preordained ["if you only have a hammer every problem's a nail," etc.].
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ChrisB (profile), 10 Apr 2010 @ 9:33am

Re: Re:
If I'm going to comment on someone else's opinion, I usually have to quote them or at least summarize their position. Further than that, no thought is original, it is simply a synthesis of other ideas. Anyone who has training in art or science knows this.
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Anonymous Coward, 10 Apr 2010 @ 10:26am

Re: Free speech means your speech, not someone elses
You're using letters, the same letters I'm using, and you're using words and those words are in Websters dictionary so you're infringing on those words. You're infringing on the letters and words I'm using, copyright infringement. I should sue you.

The thing is that ideas are expressed in words and sentences and there is a limited number of meaningful sentences that words can form to express ideas. So where do we draw the line the copying of a letter, the copying of a word, the copying of a sentence, the copying of a paragraph? and why do we draw the line there? Is it not possible for two people who have similar ideas to independently come up with similar or identical sentences and use similar words simply because those sentences express similar ideas? If I say 2 + 2 = 4 and you say the same thing, is that infringement? What, should everyone be forced to come up with new creative ways of expressing the same idea to the point of making the English language meaningless, inefficient, and inconsistent (and creating new dialects and new languages even just to get round copywrong privileges). I think not.
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Anonymous Coward, 10 Apr 2010 @ 10:29am

Re: Re: Re: And what about the Copyright Clause?
"I think you're trying to say that if tension [or outright conflict] arises between a provision in the body of the Constitution and the First Amendment to the Constitution then, in that battle, the First Amendment must prevail. "

But the constitution does say, "to promote the progress" and I think that allowing copywrong laws to hinder free speech does nothing to promote the progress.

The problem is that IP maximists only pay attention to certain parts of the constitution, like the ability to grant monopolies, but they ignore the parts they don't like, like the parts that say to promote the progress.
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Anonymous Coward, 10 Apr 2010 @ 10:58am

Re: Free Speech is Speech, not the written word.
"Speech is the spoken word, NOT the written word."

See
"or abridging the freedom of speech, or of the press"
[emphasis added]
wikipedia

Press can be written.
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Anonymous Coward, 10 Apr 2010 @ 11:24am

Re: Re: Free speech means your speech, not someone elses
The thing is that ideas are expressed in words and sentences and there is a limited number of meaningful sentences that words can form to express ideas.

It's non-infinite but the number is actually very, very large. I was teaching a class once where several students plagiarized large portions of their final papers. I found that if you Googled a four- or five-word phrase, the number of documents with those four or five words in that particular order was basically zero (or one, if they were plagiarizing).

So it's actually tremendously easy to write something unique. Most of us do it every day. If the odds of you and me writing the same four- or five-word sentence are so low, what are the odds of us writing the same paragraph? The same page? The same chapter?
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Anonymous Coward, 10 Apr 2010 @ 11:25am

Re: Re: Re: Re: And what about the Copyright Clause?
I am glad that you want all guns taken away from people who are not members of a well-regulated militia.
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Anonymous Coward, 10 Apr 2010 @ 11:32am

Re: Re: Re: Free speech means your speech, not someone elses
But you still didn't answer the question. Where do we draw the line and why there?
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Greevar (profile), 10 Apr 2010 @ 12:04pm

Re: Re: Re:
Are you saying that all ideas are derivative? Perish the thought!
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Greevar (profile), 10 Apr 2010 @ 12:06pm

Re: Cured
They stop using it as a cudgel to beat down anyone that uses their works in any way.
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Anonymous Coward, 10 Apr 2010 @ 12:06pm

Re: Re: Re: Free speech means your speech, not someone elses
Personally, I would rather you not write a piece of work than to have you use broken copywrong privileges to restrict my ability to criticize your work.

and I will not support any copywrong expansion laws until the current laws (ie: length and penalty of unintentional infringement vs penalty of falsely claiming privileges on something one does not have privileges on) are fixed.
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Anonymous Coward, 10 Apr 2010 @ 12:07pm

Re: Re: Re: Re: Free speech means your speech, not someone elses
I didn't answer it, but I constrained the answer: it's no less than about five words in a row. Put a buffer and make it eight. This is the point at which your hypothesis (that multiple people are likely to come up with the same words to express the same idea) might be truer than not.

Is it not possible for two people who have similar ideas to independently come up with similar or identical sentences and use similar words simply because those sentences express similar ideas?

It's possible; it's just really, really unlikely, especially in the realm of identical sentences. If they independently came up with the same idea and similar or identical sentences, then they have nothing to worry about from copyright anyway.

By the way, out of the billions of documents that Google indexes, the number of occurrences of:

"especially in the realm of identical sentences": 0
"nothing to worry about from copyright anyway": 0
"It's possible; it's just really, really unlikely": 0
"out of the billions of documents that Google": 0
"If they independently came up with the same idea": 0
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Anonymous Coward, 10 Apr 2010 @ 12:34pm

Re: Re: Re: Re: Re: And what about the Copyright Clause?
what?
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Anonymous Coward, 10 Apr 2010 @ 12:40pm

Re: Re: Re: Re: Re: Free speech means your speech, not someone elses
"it's no less than about five words in a row."

"By the way, out of the billions of documents that Google indexes, the number of occurrences of:"

"nothing to worry about from copyright anyway":

Ahh, but that's because you cherry picked your sentences and your bad ideas aren't really shared by many other people so of course they won't come up with these sentences.

But google the words, "You have nothing to worry about" that's SIX words, one more than the initial five you mentioned, and it comes up everywhere. I can likely come up with other examples.
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Dementia (profile), 10 Apr 2010 @ 12:42pm

Re: Re: Re: Re: Re: And what about the Copyright Clause?
Now take it a step further an realize that, at the time the constitution was written, all able body men were considered part of the "well regulated militia". Yes, we now have the National Guard and a standing military force, however, the right and responsibility to defend our country and ourselves, lies in the ordinary American citizen. As such, while it may no longer be as well regulated as the founding fathers would have liked, the militia still exists and is composed of every able bodied American citizen.
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Anonymous Coward, 10 Apr 2010 @ 12:44pm

Re: Re: Re: Re: Re: Free speech means your speech, not someone elses
""If they independently came up with the same idea": 0"

That's because you are using poor syntax and need to take an English Class.

Rather, look up the words, "If you independently come up with the same idea" and you get some hits.

Or better yet, look up "If someone independently comes up with the same idea"

The fact that you are using poor grammar does not help your case. There are only so many ways to PROPERLY structure a sentence of X amount of words to convey a particular underlying meaning. So now you want students to use poor grammar just to express something that doesn't happen to copy anyone? Do I need to google every sentence I want to put in an essay to make sure no one else uses the same sentence?
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Anonymous Coward, 10 Apr 2010 @ 12:47pm

Re: Re: Re: Re: Re: Re: Free speech means your speech, not someone elses
(to continue)
and of course if I am turning in an essay I am going to structure my sentences properly in order to get a good grade despite the fact that most of my teachers probably wouldn't know good grammar from bad grammar regardless. Either way, this is a blog so I don't really care to use good grammar, but if you want to make a point about sentence search hits then use correct grammar instead of your own made up rules.
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Anonymous Coward, 10 Apr 2010 @ 1:14pm

the same warped logic could be used to make squatting legal, and to allow anyone to use anyone else property in any way they see fit because it is their free speech. it fails to address that free speech isnt an absolute that trumps everything else there are acceptable limits to it. otherwise the us quickly sinks into a socialist state with no true ownership of anything.
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Anonymous Coward, 10 Apr 2010 @ 1:40pm

Re:
"otherwise the us quickly sinks into a socialist state with no true ownership of anything."

No, socialism = more government regulation. Copywrong laws = more government regulation = closer to socialism than the lack of these laws.

It is socialist governments that try to limit free speech, it is freedom of speech that had made America what it is and that makes free market capitalism truly free.

"and to allow anyone to use anyone else property in any way they see fit"

There is a difference between physical property and intellectual "property". Physical property is limited by the amount of physical resources that exist whereas an idea can simply be duplicated and doesn't have the same artificial restrictions. The purpose of physical property laws are to allocate scarce resources in the best interest of society as a whole. As Thomas Jefferson points out, no one inherently "owns" anything, the government merely allocates resources in an attempt to allocate them in the best interest of society as a whole. Physical property laws should ONLY exist to the extent that they serve the best interest of society as a whole and the argument behind their existence is that society is better served with them than without. IP laws are no different, they should only exist to the extent that they serve the greater good, hence the words - to promote the progress - in the constitution. Putting in place IP laws just for the sake of creating artificial "ownership" is not (or at least should not be) the intended purpose of these laws and hence we shouldn't create laws to serve such a purpose.
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jimbobber, 10 Apr 2010 @ 2:33pm

A Novel Approach (pun fully intended)
Suppose that someone writes a fictional book called Star Trek and begins to create a fictional universe (ok, so Gene Roddenberry has already done that). Does this mean that he now "owns" said universe(?) with all of its stated (so far, at the time) and potential and future timelines, dimensions, characters, etc? If another person should happen to write a story relative to one of Mr Roddenberry's Star Trek characters, should that person be allowed to publish it? (oh, that's already happened as well) Should Mr Roddenberry (or any current or future "rights-holder") be compensated and/or have any say-so regarding the content or even existence of this new story? Now all of you wannabe and/or self-proclaimed legal beagles can respond with your comments, complaints, chastisements or whatever. It doesn't really matter to me as I know that I already don't agree with any of you, and none you, not now or ever, will ever know why that is so.
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Anonymous Coward, 10 Apr 2010 @ 5:48pm

Re: Re: Re: Re: Re: Re: Free speech means your speech, not someone elses
Isn't there a rule that if your argument degenerates into attacking someone's grammar then you've lost?

That with searching you can find some exceptions shows that these are, in fact, exceptions. Your hypothesis that copyright is endangering people who accidentally use the same words to express an idea fails on two levels: independent expression does not create a copy or a derivative work, and in practice it just doesn't happen very often.

Maybe this will help explain things.
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Anonymous Coward, 10 Apr 2010 @ 6:27pm

Re: Re: Re: Re: Re: Re: Re: Free speech means your speech, not someone elses
"Isn't there a rule that if your argument degenerates into attacking someone's grammar then you've lost?"

Except that in this situation grammar is relevant which is why I mentioned it. I'm not the grammar Nazi either, but when trying to prove that sentences you make don't show up on Google I don't expect others to make the same grammar errors as you. I expect there to be many other people who, when trying to express a thought, would use proper English and so it is very relevant and important for someone who wants to prove that it is difficult for two people to duplicate the same sentence to use proper English in this context.

"That with searching you can find some exceptions shows that these are, in fact, exceptions."

No, the fact that I can find some examples does not demonstrate that these are exceptions. In fact, I only looked for the very sentences he wanted to search for except I corrected his bad syntax and I found examples. and even if these are the exceptions, which they're not, it should be enough to prevent copywrong laws from applying to some extent because their application will either hinder the expression of certain ideas or force people to use poor grammar, as has been demonstrated whomever I was arguing with.

"independent expression does not create a copy or a derivative work"

Irrelevant, the potential expense of a potential lawsuit doesn't care and East Texas courts and other retarded courts don't care and our legal system is too retarded to care.

"and in practice it just doesn't happen very often."

No, it does happen often, and my example of finding his very own sentence after merely correcting his sentence structure is evidence of this.
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Anonymous Coward, 10 Apr 2010 @ 6:29pm

Re: Re: Re: Re: Re: Re: Re: Re: Free speech means your speech, not someone elses
errr .... as has been demonstrated by whomever I was arguing with *
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Anonymous Coward, 10 Apr 2010 @ 6:30pm

Re: Re: Re: Re: Re: Re: Re: Free speech means your speech, not someone elses
and notice how you still failed to answer the question.
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Anonymous Coward, 10 Apr 2010 @ 6:34pm

Re: Re: Re: Re: Re: Re: Re: Free speech means your speech, not someone elses
"Maybe this will help explain things."

Another "exception" is the very sentence that comes up when I hit that keyword.

Google ""exception that proves the rule""

and you get a lot of hits.

and that link also potentially infringes on Google's copywrong privileges as well, and heck, it potentially infringes on their trademark being that it has a Google Logo on it. Wow, you're breaking all sorts of laws. Can't you come up with any unique idea instead of just copying others and utilizing links that copy Google?

"Maybe this will help explain things."

Oh, and that returns a lot of hits too. Wow, you really can't come up with any unique ideas can you?
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Gene Cavanaugh, 10 Apr 2010 @ 6:36pm

Copyright abuse and the First Amendment
This can't be corrected by the courts. First Amendment protections protect against governmental abuse, and copyright is, generally, a private matter.

It would be GREAT to have Congress fix it, but you saw what happened to John McCain et al when they tried to "fix" campaign financing. Big media would squash anyone in Congress who even joked about such a thing.

In the US, a relatively undeveloped country, no one gets elected without lots of money, and except for Obama, that means if they don't listen to the corporations who bought them.
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Anonymous Coward, 10 Apr 2010 @ 6:49pm

Re: Copyright abuse and the First Amendment
Obama was bought by the corporations that bought every other elected official. Don't be fooled.
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Anonymous Coward, 10 Apr 2010 @ 7:28pm

Re: Re: Re: Re: Re: Re: Re: Re: Free speech means your speech, not someone elses
I always chuckle when I hear how some visual artists, when asked how they practiced their art and tried to get better, how they would talk about COPYING over COPIES of other artist's work.

HOW DARE THEY!

It's almost like copying is an important aspect of making art. But what do artists know? Anyway, what do lawyers think of all this copying?
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Hephaestus (profile), 10 Apr 2010 @ 7:53pm

Re:
Simple truth ... remove their ability to make money and they become inconsequential.
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Anonymous Coward, 10 Apr 2010 @ 8:07pm

Re: Free speech means your speech, not someone elses
"and to truly speak your mind, not echo my mind."

Well, it's a good thing that no one is allowed to think like you because if they all thought like you then they would be violating the very idea that no one should be allowed to think like you. and I would hate for everyone to think that no one should copy anyone else's ideas but since you're the only one who is allowed to think that then I have little doubt that your ideas won't spread and become a problem that creates bad laws.

You express your ideas so that others can think like you, right? You want your ideas to spread. Yet, for your ideas to spread would imply that others think like you which itself seems to be against your very own ideas. See what you did there? Your very ideas restrict the replication of your ideas and hence defeat the purpose of expressing your ideas to in the first place.

Hedonism faces the same dilemma. A hedonist must advertise altruism because a hedonist would want others to be altruist to the benefit of the hedonist and hence hedonism is non transferable.
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Anonymous Coward, 10 Apr 2010 @ 8:53pm

Re: Re:
no socialism is the sharing of everything through collective and shared ownership it has nothing to do with government. government is only the mechanism for doing it. the rest of your arguments are weak and dull. exactly how many u2 songs exist? limited or unlimited? it is only unlimited if you look at copies not the original product. your argument is a fail.
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Anonymous Coward, 10 Apr 2010 @ 9:19pm

Re: Re: Re:
I suppose you can just make up your own definition of socialism them.
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Anonymous Coward, 10 Apr 2010 @ 9:20pm

Re: Re: Re: Re:
errr, then *
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Anonymous Coward, 10 Apr 2010 @ 9:26pm

Re: Re: Re:
"the rest of your arguments are weak and dull"

Yes, simply because I disagree with you.

"exactly how many u2 songs exist? limited or unlimited? it is only unlimited if you look at copies not the original product. your argument is a fail."

What? There are websites dedicated to providing music under a CC license, a license designed to circumvent copywrong laws, and they offer many many songs.
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Anonymous Coward, 10 Apr 2010 @ 10:13pm

Re: Re: Re:
"government is only the mechanism for doing it."

Exactly, government is "the mechanism for doing it", what I want is LESS government intervention which is the opposite of socialism.
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Chris Coles, 11 Apr 2010 @ 2:16am

limited number of meaningful sentences that words can form
So in your opinion, no one today has any capability to write anything new that uses existing letters and words.

OK, try googling: The Universe is a Cloud of Surplus Proton Energy. Yes, its a book. When you have read it; tell eveyone what was not original.
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Anonymous Coward, 11 Apr 2010 @ 5:02am

"So in your opinion, no one today has any capability to write anything new that uses existing letters and words."

When you stop making up the opinions of others out of your imagination then maybe we can have a meaningful discussion.
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Anonymous Coward, 11 Apr 2010 @ 5:13am

Re: limited number of meaningful sentences that words can form
"So in your opinion, no one today has any capability to write anything new that uses existing letters and words."

When you stop making up the opinions of others out of your imagination then maybe we can have a meaningful discussion.

"When you have read it; tell eveyone what was not original."

You can google the words "asdfjoawera" or "2 + 2 = 493423"

You will probably get no hits giving exact quotes. The idea that 2 + 2 = 234424 is a unique idea after all, it's original.

BTW, I'm not saying that your book is wrong either, I'm just pointing out that forcing people to constantly come up with something original would be a disaster in that it might purposely force people to come up with something that is false or that they believe to be false and it might force them to come up with something completely illogical.

No, our thoughts and expressions should be based on what we believe to be true and hence our thoughts should probably be based on good logic and our written expressions on good grammar, not on who has the same ideas and who can copy whom.
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Anonymous Coward, 11 Apr 2010 @ 6:53am

Re: Re: Re: Re:
government and a mechanism doesnt mean the government is declaring new regulation to make it happen they are just fulfilling the will of the people. socialism dictatorship. non-socialist systems still have plenty of government intervention just in different places.
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Anonymous Coward, 11 Apr 2010 @ 8:48am

Re: Re: Re: Re: Re:
"government and a mechanism doesnt mean the government is declaring new regulation to make it happen they are just fulfilling the will of the people."

In order for the government to fulfill the will of the people is to intervene. Otherwise the government is minding its own business which means it's the lack of government fulfilling the will of the people, as in free market capitalism.

"non-socialist systems still have plenty of government intervention just in different places."

Well, yes, free market capitalism isn't anarchy and I'm not advocating for anarchy either. I do think some government regulation is OK, but socialism calls for more government regulation than free market capitalism and I want less government regulation so what I want is closer to free market capitalism and what you want is closer to socialism.
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Anonymous Coward, 11 Apr 2010 @ 8:48am

Re: Re: Re: Re: Re: Re:
errr...

In order for the government to fulfill the will of the people it needs to intervene. *
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Anonymous Coward, 11 Apr 2010 @ 8:53am

Re: Re: Re: Re: Re: Re:
(to continue)

and one of the main functions of free market capitalism is to protect against things like consumer fraud (and violence, but it's the job of the political structure, not the economic structure, that's supposed to protect against things like violence). Well, copywrong laws have nothing to do with fraud or the things that free market capitalism is supposed to protect against and so I don't care for them.

and I certainly do want the government to serve the will of the people. I don't trust corporations to dictate what's in the best interest of the people, I trust them to dictate what's in their own best interest.

As it currently stands it's the corporations that dictate policy (ie: they want these patent and copywrong laws and they want to expand them and they're the ones that want copywrong length to be as long as it currently does, not the people) and they're not dictating it in the best interest of the people, they're dictating it in their own best interest.
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Anonymous Coward, 11 Apr 2010 @ 9:00am

Re: Re: Re: Re: Re:
In free market capitalism the price gets pushed down to marginal cost. If the cost of copying something is zero then the price would get pushed down to zero. What you want are government regulations that artificially raise the price, what you want has nothing to do with free market capitalism because government sanctioned monopolies play no role in free market capitalism. I'm a free market capitalist, or at least closer to one than you are in this respect.
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Anonymous Coward, 11 Apr 2010 @ 9:03am

Re:
"and to allow anyone to use anyone else property in any way they see fit"

Something isn't yours just because you declare it to be. The air you breath isn't yours just because you declare it to be. Likewise, no one owes you a monopoly on anything just because you claim they do.
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Anonymous Coward, 11 Apr 2010 @ 9:04am

Re: Re:
(also, the air others breath isn't yours just because you declare it to be).
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Anonymous Coward, 11 Apr 2010 @ 9:25am

Re: Re: Re: Re: Re:
"non-socialist systems still have plenty of government intervention just in different places."

Being that it wasn't the people or the artists that initially wanted copywrong laws, but the distributors and those who stand to unfairly benefit, and being that it's the corporations that lobby for them, then what you want are laws that serve the will of the rich. In other words, what you want is called a plutocracy, a far cry from free market capitalism. The problem with most free market capitalists is that they only want free market capitalism to the extent it benefits them, yet they want to restrict others to laws that unfairly benefit them. See

http://www.youtube.com/watch?v=08gfh_6sbQI

for more information on the history of copywrong laws.
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dnball (profile), 11 Apr 2010 @ 10:10am

Re: Re: Re: Re: And what about the Copyright Clause?
You wrote: "The problem is that IP maximists only pay attention to certain parts of the constitution, like the ability to grant monopolies, but they ignore the parts they don't like, like the parts that say to promote the progress."

The direct answer, of course, is that the Copyright Clause expressly does both: it IS the grant of power to Congress permitting it to pass copyright laws IN ORDER to "to promote the progress." Both are in the very text of the Copyright Clause in Article 1, Section 8. The First Amendment, meanwhile, is silent on the matter.

What you probably meant was that copyright maximists focus exclusively on the Copyright Clause and ignore that portion of the First Amendment declaring that "Congress shall make no law ... abridging the freedom of speech ... ."

I think that your complaint is, in the main, valid. As already noted above, however, I think Professor Olson is guilty of the same bias: he ignored the Copyright Clause and focused exclusively on the First Amendment's freedom of speech clause.

More broadly, however, I think this entire discussion is missing a particularly important fact: very few copyright infringement allegations implicate the First Amendment -- either under our existing law or even [I think] under the expanded influence of the First Amendment that folks like Olson would like to see.

The edict that Congress shall make no law abridging freedom of speech does not mean that ALL speech is lawful. In fact, only since 1976 has the First Amendment been read to prohibit Congress from making laws that limit commercial speech [i.e., speech that proposes a commercial transaction]. Before then, commercial speech was routinely limited by Congress under its Commerce Clause power. [And where were the First Amendment purists then I wonder?]

"Speech" has been broadly defined, rightly, to include oral, written, and expressive communications. But some speech is so detrimental to society that the Supreme Court has told Congress it may define certain speech as unlawful -- e.g., words inciting to riot, obscene material, child pornography, and [like it or not] material that infringes a person's copyright [and, by the way, material that infringes a person's trademark].

In addition, the freedom of speech clause prohibits Congress from COMPELLING a person to express certain views - a fact very much ignored by mashup artists who, w/o permission, insert others' works into their own which creates, some say, an unwanted affiliation between the original artist and the new work.

Don Henley, for example, is suing someone right now for using two of his melodies to make political parody songs. See http://j.mp/a9ToxM . He argues that the parodist should not have the right to create a new work that results in Henley being associated with the parody. Wouldn't it be delicious irony if this liberal demi-god's lawsuit is the one that dramatically CURTAILS fair use? Henley the copyright maximist. Who'da thought?

In any event, the First Amendment is generally only implicated when copyright infringement allegations involve artistic works and news reporting.

Copyright infringement allegations involving commercial speech other than news reporting [advertising, product placements, marketing proposals, etc. etc.] and the bazillion non-fiction literary works do NOT implicate the First Amendment [normally]. In those situations, Congress has the right under the Copyright and Commerce Clauses to prohibit speech.

All of which is to say be careful when relying on the First Amendment to protect speech -- it is not as powerful as you may think.
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Anonymous Coward, 11 Apr 2010 @ 11:16am

Re: Re: Re: And what about the Copyright Clause?
"I think you're trying to say that if tension [or outright conflict] arises between a provision in the body of the Constitution and the First Amendment to the Constitution then, in that battle, the First Amendment must prevail.

Under very settled Constitutional jurisprudence, that's clearly not true."

I suppose it depends what you mean by conflict. If someone were to argue that under perfect freedom of speech, copyright could not exist, then certainly you're right. The constitution clearly gives Congress the power to create some copyright law, and it seems obvious that there are some possible copyright statutes that have no material tension with the first amendment: A copyright law that merely required anyone using an unmodified copyrighted work for profit to pay a small percentage of that profit to the copyright holder would seem to have no tension with the first amendment at all, because only someone who profits financially from the use has to pay and what they pay is inherently less than the amount of profit, so no prospective use is made economically unsustainable and no speech is inhibited.

However, if you mean to suggest that any statute which is within the power of Congress under the copyright clause is deserving of materially less scrutiny under the first amendment than a statute enacted under e.g. the commerce clause, I'd like to see some authority for that. This "battle of the titans" that you suggest doesn't seem to exist, because the copyright clause (or one of the other enumerated powers of Congress) is merely the first hurdle that a federal statute must pass before it can be upheld as constitutional. That a statute is within the power of Congress merely saves the statute from being immediately struck down, it doesn't provide any special force against which the statute can survive the violation of another part of the constitution.
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Anonymous Coward, 11 Apr 2010 @ 11:22am

Re: Re: Re: Re: Re: And what about the Copyright Clause?
"In addition, the freedom of speech clause prohibits Congress from COMPELLING a person to express certain views - a fact very much ignored by mashup artists who, w/o permission, insert others' works into their own which creates, some say, an unwanted affiliation between the original artist and the new work."

But that isn't Congress compelling anything. It's private action. Congress is under no obligation to prohibit everyone from doing the things that Congress itself is prohibited by the constitution from doing.
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D. Stern, 11 Apr 2010 @ 12:54pm

Re: And what about the Copyright Clause?
In principle, you and I are largely in agreement. However, I do agree that at the very least the economic interests of the copyright owners should be balanced against the free speech rights of 'fair / unfair users.'

Also, there is an inherent danger in looking to economic consequences because it is largely presumed that anything that is not wealth (in the money sense) maximizing is inherently bad or antithetical to american values. While America rose to prominence on the coat tails of innovation and entrepreneurship, this fundamental characteristic needs to adapt to a increasingly interconnected and verbose population.
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dnball (profile), 11 Apr 2010 @ 1:41pm

Re: Re: Re: Re: Re: Re: And what about the Copyright Clause?
Congress creates laws that establish courts which, in turn, authorize Artist One to take a portion of Artist Two's work w/o permission and use it in a way that Artist Two does not approve. Congress, through the courts, has, therefore, compelled speech from Artist Two.

It's roundabout, I know, but that's how it works.
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dnball (profile), 11 Apr 2010 @ 2:36pm

Re: Re: Re: Re: And what about the Copyright Clause?
You write: “That a statute is within the power of Congress merely saves the statute from being immediately struck down, it doesn't provide any special force against which the statute can survive the violation of another part of the constitution.”

I would agree with you IF the Copyright Clause simply said: “To create copyright laws.” Which is about the extent of most of the other grants of enumerated powers listed in Article 1, Section 8.

But the Copyright Clause is not so limited. Its text not only grants Congress the power to create copyright laws, it expressly explains WHY “[t]o promote the Progress of Science” and HOW “by securing … the exclusive Right to their respective Writings.”

The only contemporaneous indicator of why this language was adopted comes from James Madison in The Federalist No. 43. Speaking of the Copyright Clause, he wrote: “The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.”

The Founders clearly believed that authors were entitled to a period of exclusive use of their works of authorship and that it was this monopoly – during the term of which the author alone was entitled to commercially exploit the work – that spurred the creation of additional works. Which, on a societal [NOT personal] level, would ultimately “promote the Progress of Science … .”

So, yes, the Copyright Clause inherently DOES provide special force against restrictions that are sought to be placed on the “exclusive Right” that copyright owners have in their works.

The goal of the First Amendment to restrict Congress from making laws abridging the freedom of speech is NOT MORE important than the goal of the Copyright Clause to “[t]o promote the Progress of Science … .” They are, on their face, equal [i.e., my “battle of titans”].

However, when interpreting the law it's a rule of construction that the more specific is to be deemed more controlling than the less specific.

In this case, the Copyright Clause can be no more specific on the issue of our copyright laws and the First Amendment can be no more obtuse. In short, the Copyright Clause trumps the First Amendment when the issue to be decided is how broad copyright law should be: such as, to get back to the point of Mike’s post, the efficacy of the copyright misuse doctrine as a way to level the playing field between creators of works and users of works.
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dnball (profile), 11 Apr 2010 @ 2:53pm

Re: Re: And what about the Copyright Clause?
I wholeheartedly agree that the First Amendment's prohibition against laws abridging freedom of speech MUST be considered when evaluating the extent of the copyright monopoly that attaches to a work that someone else wants to use to create a new work.

As I've noted, that First Amendment analysis is certainly proper when the new work is artistic or is news reporting.

The bug in my saddle was Professor Olson's argument that when a court considers whether or not a copyright owner "misused" its copyright, that analysis must SOLELY be driven by, and the conclusion dictated by, the First Amendment's goal of unfettered free speech.

My rejoinder was that that approach impermissibly IGNORES the Copyright Clause.
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Anonymous Coward, 11 Apr 2010 @ 2:53pm

Re: Re: Re: Re: Re: And what about the Copyright Clause?
Warning ... thread jacking in progress
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Anonymous Coward, 11 Apr 2010 @ 3:23pm

Re: Re: Re: Re: Re: Re: Re: And what about the Copyright Clause?
Only in Bizarro Universe does bizarro argument make sense. Using a portion of another's work is not compelling that person's speech. How could it? You're suggesting that a person making a derivative work is forcing the original artist's speech. It is not. It is a DERIVATIVE WORK.
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Anonymous Coward, 11 Apr 2010 @ 3:39pm

Re: Re: Re: Re: Re: And what about the Copyright Clause?
Do you truly believe that 95 year copyright furthers anything other than profits? Please. Go back to the original, SHORT, terms. Free up our culture so that we can actually celebrate it!
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Anonymous Coward, 11 Apr 2010 @ 3:40pm

Re: Re: Re: And what about the Copyright Clause?
How? How can you possibly support the use of copyright to squelch free speech?
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Anonymous Coward, 11 Apr 2010 @ 8:39pm

Re: Re: Re: Re: Re: And what about the Copyright Clause?
"But the Copyright Clause is not so limited. Its text not only grants Congress the power to create copyright laws, it expressly explains WHY “[t]o promote the Progress of Science” and HOW “by securing … the exclusive Right to their respective Writings.”"

So let's compare it with this, for example: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;"

As with the copyright clause, it not only grants Congress power to raise money, it expressly explains WHY "to pay the Debts and provide for the common Defence and general Welfare of the United States" and HOW "lay and collect Taxes, Duties, Imposts and Excises ... but all Duties, Imposts and Excises shall be uniform throughout the United States."

Yet if Congress passed a law that created a tax on Republican campaign ads but not Democratic campaign ads, the courts would strike it down immediately as violating the first amendment.

"The goal of the First Amendment to restrict Congress from making laws abridging the freedom of speech is NOT MORE important than the goal of the Copyright Clause to “[t]o promote the Progress of Science … .” They are, on their face, equal [i.e., my “battle of titans”]. "

But this is assuming that there is really some sort of battle between the constitutional provisions in the first place. As I said in my first post, there are clearly some possible copyright statutes that don't materially implicate the first amendment. It seems equally clear that there are possible copyright statutes that blatantly violate the first amendment. To use a similar example as the one above, if Congress passed a law that said that Democratic campaign ads can only be copyrighted for 2 years whereas all other campaign ads can be copyrighted for 100 years, it would be obviously unconstitutional as a content-based restriction.

"However, when interpreting the law it's a rule of construction that the more specific is to be deemed more controlling than the less specific."

It's also a rule of construction that a later enactment controls an earlier enactment, and the copyright clause came earlier than the first amendment. In addition, I think you're misapplying the rule you're citing: The more specific controls because it is seen as carving out an exception to the less specific general rule. In this case the "exception" is free speech: Congress can pass all sorts of very broad laws covering copyright, commerce, taxes etc. except when those laws infringe the freedom of speech because "Congress shall pass no law infringing the freedom of speech." They are forbidden from a very specific thing in comparison to the breadth of the powers it limits. If the interpretation you're promoting was correct then the first amendment would be meaningless because the specific individual powers of Congress would each be "more specific" than the "obtuse" (seriously?) first amendment and it would never apply to anything.
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Anonymous Coward, 11 Apr 2010 @ 10:41pm

Re: Re: Re: Re: Re: Re: And what about the Copyright Clause?
nothing about IP is intended or designed to promote the progress and the ridiculous copywrong laws are just another example showing the true intent of IP, to exploit the public.
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Anonymous Coward, 11 Apr 2010 @ 10:50pm

Re: Re: Re: Re: Re: Re:
Government intervention is at times necessary when an industry collapses within itself. This often happens over a series of decades or years when there is more value put on maintaining the system than active pursuit of what the marketplace desires.

Many innovative companies invest 5-10% of their gross income to R&D. Google is a stand-out which allows it's engineers to invest up to 20% of their time to R&D.

We offer our engineers “20-percent time” so that they’re free to work on what they’re really passionate about. Google Suggest, AdSense for Content and Orkut are among the many products of this perk.

http://googleblog.blogspot.com/2006/05/googles-20-percent-time-in-action.html

The problem with many companies is that outsiders are often brought in to re-invent the wheel to take advantage of new opportunities rather than using existing, internal human capital which would have the knowledge, internal connections and existing expertise that pertain to both the marketplace as well as servicing their customers, both internal and external.

If you were to compare that to many companies that rely upon legislation and copyright to sell and promote their product, internal ideas are often sequestered from sight as the working environment doesn't allow for expansion beyond the original job description.

When it comes to legacy business models such as the current music distribution model, current reporting and newspaper distribution model, the task of enforcing copyright has become a necessity to maintain the revenue targets set by major brokerages and Wallstreet analysts. We have to accept that corners were cut, and the concept of "investing in the future" was overlooked for years, if not decades. If valuations of companies were accurate, and based on a lifelong term rather than the fixation on satisfying the next quarter, you would see that many of these entities perhaps would have focused five or ten years down the road.

What we saw with the financial meltdown is that many of our own financial institutions weren't focused on longterm goals, but rather, satisfying quarterly goals using loopholes such as SFAS 140, which now we're learning was used by many institutions.

There's a point to all of this- It's that many want to enrich their life. They will speak loudly if they can't get it. Much like financial instruments, it's not difficult to forsee copyright and patent holders try to exhort force saying we're under attack like we saw when our economy supposedly cratered and we would all be under Marshal Law.

When it comes to copyright, patents, and intellectual property, an open and transparent system is extremely valuable. If the US Government won't get with the times, I say it's time to burn it all down and start over.

It's why I support the Creative Commons and Larry Lessig. I hope Dr. Lessig expands his efforts to include inventions and continues to carry the original goal of Thomas Jefferson's original idea of the USPTO. Maybe a starting point is to provide, or scan, all the patents into Creative Commons, and notate them as who the copyright holder is, and what they claim.

I would call it "LarryDirt.com"

Maybe he get that Ed Felten guy involved to create an intelligent one-to-many lookup so people who want to license a patent would have an idea of who the licensors would be. Ed seems to need something to do because he doesn't like the iPad...
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Anonymous Coward, 11 Apr 2010 @ 11:28pm

A level of socialism is necessary because Government Intervention didn't occur. It is at times necessary when an industry collapses within itself. This often happens over a series of decades or years when there is more value put on maintaining the system than active pursuit of what the marketplace desires.

Many innovative companies invest 5-10% of their gross income to R&D. Google is a stand-out which allows it's engineers to invest up to 20% of their time to R&D.

We offer our engineers “20-percent time” so that they’re free to work on what they’re really passionate about. Google Suggest, AdSense for Content and Orkut are among the many products of this perk.

http://googleblog.blogspot.com/2006/05/googles-20-percent-time-in-action.html

The problem with many companies is that outsiders are often brought in to re-invent the wheel to take advantage of new opportunities rather than using internal human capital which would have the knowledge, internal connections and existing expertise that pertain to both the marketplace as well as servicing their customers, both internal and external.

Today, many companies have relied upon reserve plans which request new legislation and copyright to sell and promote their product. In the process, internal ideas are often sequestered from sight as the working environment doesn't allow for expansion beyond the original job description.

Indeed, many of these folks who "know the business" could start their own that leverage the new internet model.

When it comes to legacy business models such as the current music distribution model, current reporting and newspaper distribution model, the task of enforcing copyright has become a necessity to maintain the revenue targets set by major brokerages and Wallstreet analysts. We have to accept that corners were cut, and the concept of "investing in the future" was overlooked for years, if not decades. If valuations of companies were accurate, and based on a lifelong term rather than the fixation on satisfying the quarterly estimates, you would see that many of these entities perhaps would have focused five or ten years down the road, and we wouldn't see companies trying to fervently maintain their existing business model.

What we saw with the financial meltdown is that many of our own financial institutions weren't focused on longterm goals, but rather, satisfying quarterly goals using loopholes such as Repo 105, allowed under SFAS 140, which now we're just now learning was used by many institutions.

In the banking situation, what's wrong with just saying "No"?

There's a point to all of this- It's that many want to enrich their life, be it through financial, or actual industrial (building things) use. They will speak loudly if they can't get it. Much like financial instruments, it's not difficult to foresee copyright and patent holders try to exhort force saying we're under attack by the Chinese.

The answer is licensing.

When it comes to copyright, patents, and intellectual property, an open and transparent system is extremely valuable. If the US Government won't get with the times, as the old "VHS vs BETA" song goes, it's time to "Burn It All Down".

This is why I support the Creative Commons and Larry Lessig. I hope Dr. Lessig expands his effort of Creative Commons to include inventions and continues to carry the original goal of Thomas Jefferson's original idea of the USPTO.

Maybe a starting point is to find someone who would provide or scan, all the patents into The Creative Commons, and place it alongside CC content. Notate the IP as who the copyright holder is, what they claim, and possible royalty pricing based on licensing information. Ideally Dr. Lessig would also involve Ed Felten to create a licensing algorithm based on publiclly available data. Additionally, it would have an algorithm which performs intelligent one-to-many lookup so people who want to license a patent would have an idea of who the licensors would be.

***Posted for your moderation enjoyment***
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Anonymous Coward, 11 Apr 2010 @ 11:35pm

Summary of this thread
A level of socialism became necessary because Government Intervention didn't occur. In an effort to satisfy the minority, we borrowed money from China so the rich could see a tax break.

Socialism is at times necessary when an industry or two collapse within itself. This often happens over a series of decades or years when there is more value put on maintaining the system than active pursuit of what the marketplace desires.

Many innovative companies invest 5-10% of their gross income to R&D. Google is a stand-out which allows it's engineers to invest up to 20% of their time to R&D.

We offer our engineers “20-percent time” so that they’re free to work on what they’re really passionate about. Google Suggest, AdSense for Content and Orkut are among the many products of this perk.

http://googleblog.blogspot.com/2006/05/googles-20-percent-time-in-action.html

The problem with many companies is that outsiders are often brought in to re-invent the wheel to take advantage of new opportunities rather than using internal human capital which would have the knowledge, internal connections and existing expertise that pertain to both the marketplace as well as servicing their customers, both internal and external.

Today, many companies have relied upon reserve plans which request new legislation and copyright to sell and promote their product. In the process, internal ideas are often sequestered from sight as the working environment doesn't allow for expansion beyond the original job description.

Indeed, many of these folks who "know the business" could start their own that leverage the new internet model.

When it comes to legacy business models such as the current music distribution model, current reporting and newspaper distribution model, the task of enforcing copyright has become a necessity to maintain the revenue targets set by major brokerages and Wallstreet analysts. We have to accept that corners were cut, and the concept of "investing in the future" was overlooked for years, if not decades. If valuations of companies were accurate, and based on a lifelong term rather than the fixation on satisfying the quarterly estimates, you would see that many of these entities perhaps would have focused five or ten years down the road, and we wouldn't see companies trying to fervently maintain their existing business model.

What we saw with the financial meltdown is that many of our own financial institutions weren't focused on longterm goals, but rather, satisfying quarterly goals using loopholes such as Repo 105, allowed under SFAS 140, which now we're just now learning was used by many institutions.

In the banking situation, what's wrong with just saying "No"?

There's a point to all of this- It's that many want to enrich their life, be it through financial, or actual industrial (building things) use. They will speak loudly if they can't get it. Much like financial instruments, it's not difficult to foresee copyright and patent holders try to exhort force saying we're under attack by the Chinese.

The answer is licensing.

When it comes to copyright, patents, and intellectual property, an open and transparent system is extremely valuable. If the US Government won't get with the times, as the old "VHS vs BETA" song goes, it's time to "Burn It All Down".

This is why I support the Creative Commons and Larry Lessig. I hope Dr. Lessig expands his effort of Creative Commons to include inventions and continues to carry the original goal of Thomas Jefferson's original idea of the USPTO.

Maybe a starting point is to provide, or scan, all the patents into The Creative Commons alongside CC content, and notate them as who the copyright holder is, what they claim, and possible royalty pricing. Larry should involve Ed Felten to create this. Together, they should create an intelligent one-to-many lookup so people who want to license a patent would have an idea of who the licensors would be.
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Anonymous Coward, 12 Apr 2010 @ 12:57am

What is proft?
Profit is a wonderful word, as it gives the organization resources.

As you know, gaining resources happens one of two ways- either from profit or subsidy.

These subsidies are usually paid through some form of tax or built in overhead cost that you, me, or end customers have to pay which results in higher costs to the customer. It’s as wrong as when the Government gets involved and tells taxpayers a “Free” school lunch program is free for its recipients. What does that cost you and me on our taxes?

So the goal for any company and organization should be to build strong internal financial resources, build an amazing team that can look to the future so the company can license content, and then we all reach positive long-term results. But this can only be accomplished if we look beyond the quarter.
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NAMELESS.ONE, 12 Apr 2010 @ 1:08am

glad to see the lazy lawyers have arrived
ya know one day your gonna be out a work having to sout all the lingo the me , my friends and the rest of society is getting bled to death over.

ONE day it will happen and you will create for a want too not because you expect your great grand kids to get a free lunch.

SORRY you another useless employee we can do without burger king for you....

you americans largely borred money and printed up a ton for the 3 trillion you handed out in free cash bailouts , its why the USA is going NOT going ot get out of trouble for a long long time.

Are you out of the expensive iraq? NOPE
afghanistan nope getting more there now....

HOW about ACTA has any nation outed the full document wiht the lil extras no one has seen yet tha make it even worse then it already is.

HOW about rights and freedoms you curtail and then blast china for and its doing same thing and is a communist country.

THE USA stopped being a republic democracy when they started doing business with china on this grand a scale as a source a slave labour.

YOU can have all the openness it dont matter if all i have to do to get laws passed is hand you some cash in an envelope like a Italian mobster does.

got the hint....
the answer is opensourcing everything
SLOWLY you start peddling back the time frames int he usa by 20 years every decade to allow morons and lazy shits time ot adjust to there new burger king career. FOCUS on violent crime rather then that which really isnt a crime.

ask a opensource guy that does it freely why he donates code. YE shall find more hints.

we all have the ability now with computers and our tech to literally become a music studio and even a decent film studio. WHY the hell do we need, to punish creativity and free thoughts as well as the ability to use a lil more of the past to create and even cooler looking future.

Beethoven did it without copyrights and its one reaosn why his music is still around. YOU LOCK it up too tight things will just stop and disappear, then you will have no one to blame but yoursleves.

can't wait to see acta's ramifications on the USA with all the fibre rollouts and upgrading about to get the big ...why am i paying for that which they wont let me use. POOF
economy goes for a real blunder ride.

YUP i will enjoy this shit.
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Anonymous Coward, 12 Apr 2010 @ 2:51am

Re: glad to see the lazy lawyers have arrived
I know people in this "Italian Mob" you speak of. The folks I know are good people, but I don't prescribe to it just as I don't prescribe to Knights of Columbus being an insurance company hiding behind the Pope.

I am impartial and see right through you.
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Anonymous Coward, 12 Apr 2010 @ 2:56am

Re: glad to see the lazy lawyers have arrived
You didn't read #79 and #80 did you?
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dnball (profile), 13 Apr 2010 @ 3:45pm

Re: Re: Re: Re: Re: Re: And what about the Copyright Clause?
You wrote: "To use a similar example as the one above, if Congress passed a law that said that Democratic campaign ads can only be copyrighted for 2 years whereas all other campaign ads can be copyrighted for 100 years, it would be obviously unconstitutional as a content-based restriction."

I do not dispute that when evaluating whether a political or artistic work or a news report has been infringed, courts must bear in mind, on an as-applied basis, the First Amendment's edict that Congress shall make no law abridging our freedom of speech. That as-applied First Amendment evaluation is akin to copyright's fair use analysis -- i.e., the allegedly infringing conduct may not be wrongful because society may benefit more by the conduct than by enforcement of the copyright monopoly.

But note two things: (1) that analysis can only be done on a case by case basis and (2) the conclusion that the conduct is lawful is an EXCEPTION to the copyright owner's monopoly right conferred by the Copyright Clause.

I'll repeat myself: the First Amendment limits Congress' power under the Copyright Clause -- not the other way around. In short, the rule is monopoly while the exception is the unlicensed -- but socially justifiable -- use of the copyright owner's work.

In fact, when considering the Constitutionality of our copyright laws, our Supreme Court has made clear that "[c]opyright laws are not restrictions on freedom of speech as copyright protects only form of expression and not the ideas expressed." See Eldred v. Reno at p. 375-76 at http://j.mp/dv45Em [characterizing J. Brennan's concurrence in NY Times v. US].

IF a copyright statute did, in fact, invade the public's right to express particular ideas [as opposed to restricting the reproduction of particular, tangible expressions of those ideas] or if it treated particular ideas more favorably than others [as in your example] then the statute would clearly violate the First Amendment and you would have an argument for striking the law down.

The issue I've been addressing is Professor Olson's suggestion that the copyright misuse defense [inherently antagonistic to the copyright owner] should be founded SOLELY on the First Amendment protection against laws that abridge speech [an approach that only provides support to the alleged infringer].

What is so offensive is Olson's assumption that when balancing the rights of the copyright owner and the public's right to speak freely, laid upon the alleged infringer's scale is the First Amendment to the Constitution but on the copyright owner's side are mere statutes that only implement the Copyright Clause of the Constitution.

That is not the required balance. The balance is Constitutional provision v. Constitutional provision. And, as the Supreme Court notes, until a copyright law is used to prohibit wholesale the dissemination of an idea [or set of ideas or theory or other mind construct] then the First Amendment is not offended. Moreover, when enforcing a Constitutionally-permissible copyright law we have a long history of permitting the unfettered use of others' works if that use is "fair." [Though admittedly that defense is often prohibitively expensive.]

To get back to a real world application: the "free speech" clause of the First Amendment does not -- and was never intended to -- protect a person from copyright infringement liability for using another person's work w/o permission. Just because current technology makes reproduction so very easy does not mean that our Constitution's Copyright Clause -- and the cases interpreting it and the copyright statutes originating from it -- are no longer applicable.

All that being said, it's abundantly clear that the prevalence of digital technology compels Congress to re-evaluate the term and scope of copyright protection. But Congress should do under its Copyright Clause authority -- not under some First Amendment rationale. And though it's enticing because Congress will not likely act soon, copyright folks like Olson should not simply ignore the Copyright Clause to "fix the problem" by resorting to the First Amendment because that's, at best, sneaky.
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