This Week In Techdirt History
from the looking-back dept
Five Years AgoPatents, patents and more patents were in the news. It was getting so crazy that even Dilbert was trying to tackle the issue. IBM was trying to convince the world that patent protection was the key to open source software (ha ha). Intel founder Andy Grove was promoting a use it or lose it provision for patents, while Ben Goldacre was highlighting how much harm pharma patents had done. And because who doesn't love a story about an absolutely ridiculous patent, we had one about someone claiming to have patented adding a .com to the end of an address bar (the company was demanding millions from every browser maker).
On the copyright front, we were looking at how performance rights groups like ASCAP helped funnel money from smaller artists to big artists. Hollywood was out there trying to kill another innovation as it took on the nefarious Redbox. The UK government took a study with just 136 individuals (who all self-reported) and used it to conclude there were 7 million illegal file sharers in the UK. The recording industry in Japan was trying to get the Japanese government to break your phone if you listened to unauthorized music. And the geniuses at Forrester were telling the music industry to copy the movie industry's awful "windowing" technique and release music in different formats in different stages (a recipe guaranteed to increase piracy rates).
On the journalism beat, one newspaper was saying that it wouldn't cover political candidates unless they bought ads while some out of touch NY Times guy was whining about people who thought Twitter was a new front for journalism.
Finally, Glenn Beck might not have raped and murdered a girl in 1990, but he sure wanted to do everything possible to stop people from asking if he had. On the flip side, filmmaker/story teller/cool guy Kevin Smith was still awesome about the internet and questions concerning copyright (speaking of Smith, if you haven't followed the story of how he ended up making his latest movie, Tusk, you've missed out on one great story about connecting with fans). Oh, and we went way, way, way back to 1773 to look at an important legal decision detailing why copyright is not property.
Ten Years Ago
Two rather important legal cases were decided this week ten years ago -- one good, one bad. First, the hugely important ruling in CDT v. Pappert, which dumped a bad law in Pennsylvania that required ISPs to filter out porn. The second was the Bridgeport v. Dimension Films appeal, which we were just talking about yesterday, in which a court ruled "get a license or do not sample" and further claimed of such a requirement "we do not see this as stifling creativity in any way." Perhaps because the appeals court judges weren't even remotely creative themselves.
In a weird bit of worlds colliding, the RIAA got sued for patent infringement by Altnet, the quite odd patent trolling/adware company that tried to make a "business" out of file sharing. It claimed that the RIAA's hashing technique for identifying songs being shared violated its patent. Meanwhile, DVR makers TiVo and Replay each agreed to make their products suck a little more by adding some DRM to appease an angry Hollywood. Congress, at the RIAA's request, was trying to make it a criminal offense if you shared 1,000 or more works. A Japanese newspaper was mad at Google News for "infringing" on its headlines (or so the newspaper claimed).
Finally, in a bit of perceptiveness, ten years ago we wondered whether there would be distributed backup services in the future (yup), whether the concept of area codes would matter any more thanks to mobile phones and VoIP (not so much), and we wrote about people speculating how five innovative companies in 2004 would be able to survive a bunch of new competitors in the space. The list of companies? Netflix, TiVo, PalmSource, RIM and Vonage. While most of them are still around in one form or another, I think the only one people can safely say really maintained its innovative dominance has to be Netflix. The world changes quickly in technology.
Fifteen Years Ago:
We reported on rumors that Microsoft was working on a standalone game console two years before the Xbox was announced. We wondered if teenagers would be the wireless customers of tomorrow (yup) and were excited about a (wait for it...) CD player that would play MP3s.
The "free internet access" boom was in full swing with WorldSpy jumping into the space with a big differentiator. Unlike all its competitors, it wouldn't bombard you with ads. It just hoped that you'd be so happy with the free internet access, you'd go to its website and buy stuff. Don't think that ended up working out so well. And, yes, fifteen years ago, people were still writing idiotic articles saying that open source was "communism."
Fifty-Eight Years Ago:
We weren't publishing yet, but IBM shipped the first IBM 305 RAMAC, the first computer with a moving-head hard disk. You could lease one for just $3,200 a month (in 1957 dollars!)
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And I love the link the article that "explains" why copyright is not property. Therein, you repeat the claim that "in Donaldson v. Beckett, . . . the English Lords rejected just as forcefully the claim that authors had perpetual copyright under the common law of England."
If you actually look at that opinion, you'll see that one of the questions posed was this: "Whether the author of any literary composition, and his assigns, had the sole right of printing and publishing the same, in perpetuity, by the common law?" And you'll also see that a majority of the Lords answered in the affirmative. Woops!
Journalism!
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If anyone is damaging innovation and industry, it is people like you. That is; people who only see black and white with no other option and who somehow thinks that "our way or the highway" is a service.
You would think that if Techdirt were anti-IP they would stop bringing up actual working, viable alternatives and reasons to keep IP.
What I see in Techdirt, is someone who just wants a lot less 'stick' and more 'carrot' for the ones that matter in IP: the consumers.
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"The decision held that authors, according to common law, had the exclusive right to the first publication for perpetuity, but the right was annulled once the work was published." From this site:
http://www.copyrighthistory.com/donaldson.html
In other words, artists can choose, at their own discretion, to publish or to not publish, but once they do publish, they have no right, or at least no common-law right, to prevent others from republishing.
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If anyone is damaging innovation and industry, it is people like you. That is; people who only see black and white with no other option and who somehow thinks that "our way or the highway" is a service.
I suggest that Mike is anti-IP, and you assume that I think all patents and all requests by the copyright industry should be granted? It seems you're the one who sees things in black in white.
You would think that if Techdirt were anti-IP they would stop bringing up actual working, viable alternatives and reasons to keep IP.
What I see in Techdirt, is someone who just wants a lot less 'stick' and more 'carrot' for the ones that matter in IP: the consumers.
Where has Techdirt discussed these "reasons to keep IP"?
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"The decision held that authors, according to common law, had the exclusive right to the first publication for perpetuity, but the right was annulled once the work was published." From this site:
http://www.copyrighthistory.com/donaldson.html
In other words, artists can choose, at their own discretion, to publish or to not publish, but once they do publish, they have no right, or at least no common-law right, to prevent others from republishing.
Yes, once a work was published, the right of first publication vanished. But that's a separate issue than whether there was perpetual common law copyright (before it was abrogated by the Statute of Anne), and that's what I was referring to. See, for example:Capitol Records, Inc. v. Naxos of Am., Inc., 4 N.Y.3d 540, 549 (2005).
There is some debate though about what the actual holding was since they didn't report opinions like we do now. That's why different scholars come up with different vote tallies.
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I would much rather a conerted effort to slim down current IP laws to a quasi-reasonable standard (for example, 5+5 opt-in, greater punishements for IP fraud etc.)
I've detailed my positions many times here. What, might I ask, are yours?
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That is prior to the Statute of Anne, Authors had the right of first publication, and also of attribution. The right of first publication only became of value to them after the Invention of the printing press, as those printers needed manuscripts to keep the presses going.
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He also enjoys being on the receiving end of doggystyle.
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Yeah, the seriatim opinions of the Lords in Donaldson are difficult to parse. It's one of those cases that I read once, and I have little desire to read it again. Wheaton is in the same boat for me. Donaldson followed Millar in holding that there is a common law right of first publication and a common law copyright after publication. Where they differ, though, is over whether the Statute of Anne abrogated the post-publication common law copyright. Millar said the common law copyright continues after the statutory term ends, and Donaldson said it doesn't.
So, for example, if X had an unpublished manuscript that he loaned to his friend Y, Y could not then publish the manuscript because of X's common law right of first publication. That's true under Millar and Donaldson. Say instead that X published the manuscript and registered the copyright under the formalities of the Statute of Anne. Once that limited term expired, under Millar, X still had his common law copyright which was perpetual. However, under Donaldson, X had no copyright protection, statutory or common law, after the limited statutory term expired.
Ronan Deazley is the expert to read if you're interested in this stuff. While what I recited above is the common understanding of Millar and Donaldson, Deazley sheds some doubt on that understanding by looking at other cases, like Jefferys v. Boosey. It's been a couple years since I've looked at his stuff, though, so I don't remember the details of Deazley's arguments.
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That is prior to the Statute of Anne, Authors had the right of first publication, and also of attribution. The right of first publication only became of value to them after the Invention of the printing press, as those printers needed manuscripts to keep the presses going.
I'm not sure how that applies to what we're talking about, which is whether the Lords in Donaldson held that there was perpetual copyright under the common law. In the post linked to above, Mike repeated the claim that Donaldson rejected the existence of perpetual common law copyright. I'm arguing that he's wrong.
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I think he plays word games by saying that he's anti-bad IP, but then he won't say whether he thinks there's any such thing as good IP. If he doesn't think any IP is good IP, then being anti-bad IP is the same thing as being anti-IP. I'm curious if Mike supports *any* exclusive rights for authors or inventors, and if so, why. It seems clear to me that he goes out of his way to avoid being nailed down to a particular view. I assume it's because he wants to be able to deny being anti-IP when challenged.
I've detailed my positions many times here. What, might I ask, are yours?
That's an open-ended question, but generally I subscribe to a natural rights foundation for IP rights. I think authors and inventors have a moral claim, under natural law, to the fruits of their physical and mental labors. I think utilitarianism is useful for delineating those rights, but I don't think it provides an adequate justificatory foundation. I'm happy to go into more detail if you tell me what sort of answer you're looking for.
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The nominal right for an author to control copying was invented bu the publishers, as a transferable right, so that they could manage their industry by regulating who could copy any individual work, after they failed in attempts to pass laws that gave them that right directly.
If the long history of books is examined, the only rights authors had was whether to publish, that is to either copy and distribute their own work, and/or allow others to make copies of their manuscript. The right of attribution has also been a common feature. Prior to the printing press, the owner of a copy of a work had de-facto control over whether other could make a copy of a work, which also meant that the author had no control over copies being copied once they left their control.
An authors copyright, extending beyond the decision to publish, is an invention in the Stature of Anne, where it was a transferable, time limited right given to an author, with the clock starting when it was decided to publish.
With this history there is no grounds for the Lords to hold that perpetual copyright was an authors right. The publishers had a legally granted perpetual right, which was legally abolished, but the author never had any such rights.
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With this history there is no grounds for the Lords to hold that perpetual copyright was an authors right. The publishers had a legally granted perpetual right, which was legally abolished, but the author never had any such rights.
So, correct me if I'm wrong, but your point is that you don't deny that the Lords in Donaldson held that there was perpetual common law copyright, but you just think they were wrong with that holding. If that's right, then you agree with me that Mike's position to the contrary about the holding of Donaldson is wrong.
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