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More People Recognizing Copyright's 'Free Speech Problem'

from the good-to-see dept

Fri, Apr 8th 2016 7:39pm — Mike Masnick

For many years now, we've written about the fact that copyright law and the First Amendment are actually in quite a lot of conflict. After all, copyright is regularly used to stifle speech, and the First Amendment isn't supposed to allow for the barring of speech. Over the years, legal experts have been increasingly starting to realize this. A few years back, we wrote about a paper wondering why copyright law doesn't require a showing of harm, as should be required under the First Amendment. We've also pointed out that the more that you explore the fact that copyright and the First Amendment seem to be in conflict, the more you recognize how screwed up copyright law has been. I'm even aware of two whole books that both focus on this problem: Neil Netanel's Copyright's Paradox and David Lange & H. Jefferson Powell's No Law (as in "Congress shall make no law...").

But, for whatever reason, copyright system supporters always seem to wave off this issue as if it's some kook theory, unwilling to confront the stark reality that copyright law has a serious First Amendment problem. And, no, the argument that "well the two coexisted for over 200 years" doesn't cut it, because copyright was very, very different for the first 200 years of its existence in the US. Nor does the claim that copyright law is some sort of magic exception to the First Amendment because the Copyright Clause in the Constitution "came first." That sounds good... until you remember that the First Amendment is called that because it's an amendment and you remember that it's the later part that should take precedence.

Hopefully, though, more people are beginning to recognize this issue. Law Professor John Tehranian (who has written a wonderful book on copyright excesses himself, called Infringement Nation) has an excellent article at legal trade publication The Recorder detailing the simple fact that Copyright Law Has a Free Speech Problem. It starts with a perfectly clear example of this, where two celebrities sought to punish a news tabloid for publishing proof that they had married by buying up the copyright to the photographic evidence of their wedding, and then suing for copyright infringement:

First, Monge and Reynoso purchased the copyright to the photographs. Then, they sued Maya for copyright infringement for its unauthorized use of the photographs—not to vindicate any real value in the copyrighted work but as a means of suppressing and punishing truthful speech. The gambit worked. Although a district court originally found Maya's activities protected under the fair-use doctrine, the U.S. Court of Appeals Ninth Circuit ultimately reversed and, in a 2012 published decision, deemed Maya liable for infringement.

We wrote about this case when it was ruled upon, noting the ridiculousness of the ruling at the time. As Tehranian notes, this is just one of many examples of copyright now being used to stifle First Amendment protected free expression:

By fetishizing property interests in copyright works at the expense of the public right of access to factual information, the decision effectively provided future plaintiffs with significant cover for disingenuous uses of copyright law to punish legitimate free speech on matters of public interest. And lest one think that the Maya decision only governs seemingly frivolous celebrity scandals, the precedent could just as easily be used to attach liability to the next publisher of the Pentagon Papers or other unpublished materials containing eminently newsworthy secrets.

And, no, he notes, this is not just one case. It's happening all over.

In recent years, creationists have used the Digital Millennium Copyright Act to force the takedown of critical materials put online by evolutionists. Abortion-rights activists have brought infringement litigation to enjoin speech by pro-life forces (Northland Family Planning Clinic v. Center for Bio-Ethical Reform, 2012). Military personnel have ginned up copyright claims to suppress photographs documenting human-rights abuses (Four Navy SEALs v. Associated Press, 2005). And a prominent political talk show host has sued to prevent unauthorized reproductions of his broadcasts in order to suppress criticism of his hate-filled rants (Savage v. CAIR, 2009).

Tehranian -- rightly -- slams the federal judiciary for allowing this to happen, and basically ignoring the First Amendment issues, usually with the wave of a hand about how fair use solves all the problems. But, as he notes, that leaves many in the unfortunate (and nearly impossible) situation of not being able to rely on the First Amendment to protect free speech, but to try to force it directly into copyright law itself.

Because of this issue, he offers a potential solution, saying that we need a NY Times v. Sullivan for copyright. We have, of course, discussed that case many times in the past -- most recently in the context of Donald Trump's apparent ignorance of its existence or meaning. But it's the seminal case that made defamation law "okay" under the First Amendment, by strongly favoring free expression (around public figures) by limiting defamation to cases of "actual malice."

Courts have had no problem with imposing carefully circumscribed First Amendment limitations on tort liability in a variety of scenarios. In New York Times v. Sullivan (1964), the Supreme Court famously held that defamation claims brought by public officials should be subject to a critical First Amendment check: a showing that the defendant acted with actual malice by either intentionally disregarding the truth or acting with reckless indifference towards it. The Supreme Court has subsequently extended the holding of New York Times to all manner of defamation, false light (Time v. Hill, 1967), intentional infliction of emotional distress (Hustler v. Falwell, 1988) and invasion of privacy (Cox v. Cohn, 1975) cases involving public figures or matters of public concern.

These doctrinal innovations have a common goal: preventing the courts themselves from being used by private individuals to effectively suppress speech on matters of public concern. However, the courts have left a gaping exception: copyright law. The adoption of a New York Times v. Sullivan-like check on censorious copyright claims—ones that pertain to matters of public concern where the plaintiff seeks to vindicate interests outside of the established market for the licensing of its copyrighted works—could serve as an important step towards combatting censorious infringement litigation.

This is an interesting solution and one that would be interesting to see if some lawyers decided to pursue. The tricky part, of course, would be finding the right test case with the right factual circumstances. One hopes that at least some copyright and First Amendment lawyers are out there seeking the right case on this front.

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Filed Under: copyright, free speech

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Anonymous Coward, 8 Apr 2016 @ 7:52pm

Proof of Insanity
The tricky part, of course, would be finding the right test case with the right factual circumstances.

Wisdom and Intelligence has been stripped from the legal system with a vengeance, leaving us to this trickery as a venue for remediation of these problems.

The real problem here, which is practically never addressed is our construction of a system that has moved from proof of guilt to proof of innocence. As a society we consider all accusations to be a mark of guilty almost without any pause or doubt. Few people are willing to give any benefit of doubt and immediately arrive at a conclusion as per their predefined prejudices and media spin.

The DMCA is a "guilty upon accusation" product of our failures as Citizens to stop corrupt politicians from getting into office and passing these "literally" insane laws!

Despite all of our whining and complaints we still reward the agents that spawn these things with our money. This is not going to change because the media is a vast estate of cowards now refusing to lay blame where it truly deserves to be resting.

At the Feet of the American People! The mindless beast of all our problems where EVERYONE fears to tread!
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jupiterkansas (profile), 8 Apr 2016 @ 8:17pm

Re: Proof of Insanity
Even if you try and avoid the agents that spawn these things, anything that becomes popular that's outside their control eventually gets bought and by these agents and falls under their control, because they have more money than anyone else.

Then you're stuck with the things you love in the hands of those working against your interests. All you can hope for is that nobody else likes the things you like.
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Anonymous Coward, 8 Apr 2016 @ 9:26pm

actually...
Free speech has a copyright problem.

Lets not put the cart before the horse- it gets the buggy whip makers far to excited.
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Anonymous Coward, 8 Apr 2016 @ 9:32pm

Re: Re: Proof of Insanity
If your logic held true then the US would never have existed to begin with or at least fallen long ago. Don't you think that the people were not under attack by their very self & evil politicians from the beginning?

The difference today is a vast ignorance of the Constitution and a general lack of anything close to a quality education system. Since WWII America has cast off its seclusion style of world politics and jumped in two feet first causing far more damage by become that which we saved the world from at that time!

The founding fathers predicted that America would come to just exactly what has happened now.

Those whom would give up essential liberty for temporary safety deserve neither. [People against 2nd Amendment being murdered by the police, the people WITH GUNS!]

If Tyranny and Oppression come to this land, it will be under the guise of fighting a Foreign Enemy [DHS/TSA/Patriot Act, the post 9-11 world idiots and traitors like Bush/Obama]

George Washington warned about "Entangling Alliances" & "Free Trade" [TPP for example, and the corrupt idiocy of the concept of "it's a world economy" retard crowd]

The American Citizenry's vast ignorance of History and the Founding of this Nation is what makes it so easy for our Politicians to be bought and sold.

A good example is the whole Civil War being about Slavery bullshit. Abraham Lincoln is on factual record as saying he would not free a single slave if it kept the nation together. There is only 1 cause of war and no other... AVARICE! Greed for Economic Might or Authoritative Power which are inexorably intertwined!

America has turned on itself and the Altar of Multiculturalism shall be worshiped until its people see to the nations destruction. Socialism is a sickness of the poor mind that the ultra rich feign hate for, when in truth the Super Rich want Socialism because it installs themselves as the too big to fail stewards where they buy, sell, & trade politicians willing to become sacrificial pawns for a taste of the pie.

Again, foolish Americans have been, and will always be the problem, not the "replaceable" fools we elect to serve us!
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Whatever (profile), 8 Apr 2016 @ 9:36pm

Didn't the sainted Mr Lessig try this first amendment argument set in court and get laughed out (like 9-0 or something)?

I think also that people tend to confuse the right to speak about something with the right to reproduce it. Nobody is stopping you from having a water cooler discussion about the latest movie or TV show, or saying how great the latest Beiber song is. Copyright only comes in when you try to share the actual product, not just talking about it.

Free speech is not unlimited. There is no free speech impediment in saying "you can't share someone else's work with the world without permission". If someone said you coulnd't have an opinion, you might have an issue. But you are free to speak as much as you want... just not someone else's speech.
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pixelpusher220 (profile), 8 Apr 2016 @ 9:39pm

was it really though?
"because copyright was very, very different for the first 200 years of its existence in the US"

The scope of it was different, but not the concept. It was shorter in duration and affected fewer works, but the proscription was still the same.
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TKnarr (profile), 8 Apr 2016 @ 9:47pm

Re:
But if you discuss the policy statements of a politician you disagree with, aren't you in at least some way sharing his statements with the world without his express permission? That's where the copyright-extremist viewpoint leads us, to a world where it's illegal to discuss anything anyone else said or did without getting their permission first. It leads us to a world where you can't view a Web page without the creator's permission (because your browser doesn't display the Web page, it displays a copy of the Web page that it had made and downloaded).

It leads us to a world where you're free to have an opinion, you just can't say anything about what led you to form that opinion or to back it up with facts that you believe support it (because all of that involves someone else's speech).
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Whatever (profile), 8 Apr 2016 @ 9:57pm

Re: Re:
"But if you discuss the policy statements of a politician you disagree with, aren't you in at least some way sharing his statements with the world without his express permission?"

No, that is a false and misleading concept spread by the anti-copyright types. If you reprinted his entire speech without permission (say sold a book of his speeches), you might find yourself getting in trouble. But a book ABOUT his speeches, IE your opinion of his speeches with quotes from his speeches would be fine.

So the rest of your post is pure anti-copyright bullcrap, it's not true and it's not real - except in the minds of people like Dick Augustsson.
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Anonymous Coward, 8 Apr 2016 @ 10:36pm

Re: Re: Re:
If 5 consecutive words are plagiarism then they must also be infringing
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Christopher (profile), 9 Apr 2016 @ 12:09am

Considering that in the wedding case above, the photographers for the press had to have been stalking these people or trespassed on private property to get those photographs, that is not the correct case to mention.

The cases you should mention are the ones of people taking pictures in public places and just happening to get a picture of a famous person when they walk by and then that famous person suing them for the copyright to the picture in question because they are in it when their presence is coincidental to the picture in question.
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Christopher (profile), 9 Apr 2016 @ 12:11am

Re: was it really though?
Actually that is not true. Copyright has been expanded by the courts to areas where it was never meant to apply, like insisting that someone who has their picture taken by X business has to have their permission asked and gotten for any usage by the business of that picture because "They have a copyright to the picture."
Copyright has been overly expanded not only on duration and affected workers but on numerous other subjects as well.
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Anon, 9 Apr 2016 @ 12:34am

But...
This is the world where "I have a dream..." is copyright and the speech itself, an integral part of American history, can be unplugged if necessary.

It's a good thing nobody still has a copyright on Shakespeare, the way they do on 18th and 19th century sheet music.
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Seegras (profile), 9 Apr 2016 @ 1:55am

Re: But...
NOBODY fucking has a copyright on 18th (and early) 19th century sheet music.

Anyone who claims one is lying and committing copyfraud.
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TKnarr (profile), 9 Apr 2016 @ 2:42am

Re: Re: Re:
So, Northland Family Planning Clinics v. Center for Bio-Ethical Reform, 2012 didn't happen? Nor did 4 Navy SEALS v. Associated Press, 2005? Nor did Savage v. CAIR, 2009? All of those cases were cited in the article, and in all of them it was the side favoring copyright making the argument that you didn't need to explicitly copy to infringe and that even what we'd normally consider fair use required permission from the copyright holder.

Yes, my position's anti-copyright, or at least anti-"copyright as interpreted by the copyright holders". But if it's bullcrap, you'd best look at where it's coming from because it's not mine, I'm simply citing actual statements and actions by the pro-copyright side as to how they want copyright to be interpreted. If it's bullcrap, it's pro-copyright bullcrap because that's who spewed it. I just pointed out the reeking pile they dumped.
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That One Guy (profile), 9 Apr 2016 @ 2:59am

A complete reversal of 'Innocent until proven guilty', no penalty for fraudulent claims(intentional or simply negligent), no need to demonstrate actual harm. Fix those three things and you fix a good chunk of what's wrong with current copyright law.

If a copyright owner wants something taken down, make it so they have to take the matter to court to demonstrate that the item/use in question is infringing, with the content remaining up until that requirement is met. They have to demonstrate infringement(including how fair use doesn't apply), the accused isn't put in the position where they have to demonstrate how it's not.

If someone sends out a handful of bogus copyright claims, then give them some minor penalties, like a monetary fine or prohibition from sending out other claims for a certain amount of time. If they send out numerous false claims, or it is demonstrated that they sent one in bad faith such that any reasonable person could see that there isn't infringement, then hit them with drastically harsher penalties, up to and including revocation of the copyright in question.

And lastly completely toss away 'statutory damages', such that if the copyright owner wants to claim that a given example of infringement has caused them harm, they have to actually provide evidence demonstrating this, not just claim it and have it treated as fact without supporting evidence. Want to claim that someone downloading a song, album, movie or whatever resulted in thousands or more in 'damages'? Have fun providing evidence to support that claim. Barring that evidence, have the penalties for infringement set at a more sane level, say three to five times the cost of the item in question. Heavy enough to hurt and provide incentive to get it legally next time, but not enough to bankrupt someone unless they've been downloading everything in sight.

(And as a happy side-effect doing so would absolutely gut copyright trolls, as they'd lose their biggest threat they use to get people to pay up. It's one thing to threaten people with fines potentially large enough to buy a car or even house with, 'Pay us or pay $60-100 in court if found guilty' just doesn't have the same punch to it)
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Carlie Coats (profile), 9 Apr 2016 @ 4:27am

Re: Re: But... But...
My copy of Vivaldi's Gloria:

Copyright Warner Publishing... all rights reserved.

Vivaldi died in 1741
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Anonymous Coward, 9 Apr 2016 @ 4:35am

Re: Proof of Insanity
"our failures as Citizens to stop corrupt politicians from getting into office"

Not this crap again. Seriously, you need professional help.
If you do not understand corruption and the ramifications thereof, then why do you expect others to accept your wildass accusations? You seem to be the one whining and doing nothing all whilst wagging your finger at others projecting your shortcomings.
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Anonymous Coward, 9 Apr 2016 @ 4:42am

Re:
"people tend to confuse the right to speak about something with the right to ..."

Yup. In fact, several people serving on the Supreme Court of the United States are guilty of this with their recent Citizens United ruling. Corporations are people my friend, money is speech, and blah blah blah.

Funny how you seem to selectively change your tune depending upon the issue being discussed. How many hats do you have?
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Anonymous Coward, 9 Apr 2016 @ 4:47am

Re: Re: was it really though?
And let's not forget the claims about how you can not take a picture of this building or that statue residing in public .. because I own the copyright and you owe me money.
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Anonymous Coward, 9 Apr 2016 @ 4:49am

Re:
Photoshop works wonders. Just remove the douchebag from you pictures.
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Anonymous Coward, 9 Apr 2016 @ 5:49am

Stop the Insanity.
Abolish copyright.
Period.
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Anonymous Coward, 9 Apr 2016 @ 5:54am

Re: Re:
But if you discuss the policy statements of a politician you disagree with, aren't you in at least some way sharing his statements with the world without his express permission?

Of course you are.
(Although copyright lovers try to pretend otherwise.)
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Anonymous Coward, 9 Apr 2016 @ 5:58am

Re: Re: Re: But... But...
Vivaldi died in 1741

The copyright is to encourage him to come back from the dead and write more!
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HegemonicDistortion (profile), 9 Apr 2016 @ 6:40am

Re:
We have torts for trespass, and even criminal prosecution available for it in some cases, and for stalking should their behaviors have met the definition. But copyright is not for the enforcement or punishment of any of these things, nor for the purpose of suppressing the reporting of fact or opinion.
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Anonymous Coward, 9 Apr 2016 @ 6:58am

Re: actually...
What the?! I was coming here to say that! You will hear from my attorney!
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Anonymous Coward, 9 Apr 2016 @ 7:03am

Re:
"or saying how great the latest Beiber song is. Copyright only comes in when you try to share the actual product, not just talking about it."

What if you do a cover of that Bieber song? What if you make your own song that just happens to be similar?
It's not really limited to the actual product. Sometimes there isn't even a product and copyright holders are still up in arms!
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Quiet Lurcker, 9 Apr 2016 @ 7:10am

Notice how a lot of these matters seem to hinge on one court depending blindly on the decisions of a previous court for its own decisions?

Probably, that's usually well and good - at least on a philosophical or theoretical level. It leads to consistency, predictability; the litigant can make a good guess how things will turn out.

But what happens when the previous court gets it wrong, or the later court relies on the wrong part of the previous decision and consequently gets it wrong.

Maybe, instead of making blanket use of the prior decisions, the courts should consider carefully before doing so.

Maybe, taking a lesson from George Santayana, the courts should consider the practical effects of the previous decisions in crafting their own?
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sophisticatedjanedoe (profile), 9 Apr 2016 @ 7:29am

Another side of the problem is that certain purported defenders of the First Amendment look at the copyright as an indulgence to do what their free speech beliefs otherwise would prohibit. Take Marc Randazza, who was proclaimed as a First Amendment hero by many influential people. I don’t even mean his copyright trolling past: today Marc doesn’t mind using copyright to censor unflattering information about him from the net. And other First Amendment big names behave as these shenanigans never happened, thus reinforcing the trope that Almighty Copyright trumps everything, including First Amendment, common sense, and basic dignity.
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Anonymous Coward, 9 Apr 2016 @ 8:15am

Re: Re: Re: Re:
Lets not forget that IP defenders have come up with ridiculous claims like "File Sharers Are 'Undermining Humanitarian Efforts In Haiti"

https://www.techdirt.com/articles/20100305/0317058431.shtml

and how IP defenders have lashed out at creative commons

https://www.techdirt.com/articles/20110510/02150714226/off-deep-end-people-claiming-that-supp orting-creative-commons-is-being-anti-creator.shtml

https://www.techdirt.com/articles/20100624/164019 9954.shtml

So it's no surprise that they are making these kinds of ridiculous arguments. Techdirt is merely addressing them, they are addressing the arguments that pro-IP advocates themselves make.

Just look at the ridiculous arguments Whatever makes.

Firstly: To try and justify the ridiculous nature of IP laws he tries to compare copy protection laws to real property laws. They're not the same. The purpose of IP laws shouldn't be to compensate the creator, it shouldn't be to compensate the distributors, it shouldn't be to grant creators some 'right' that Whatever thinks they are entitled to to control works. No one is entitled to copy protections, IP is a privilege not a right. The purpose should only be to promote the progress and expand the public domain. Which it has failed to do due to retroactive extensions undemocratically bought by corporations with no regard for the public.

Secondly: Even his attempts at comparing copy protection laws to real property laws have failed to demonstrate that IP laws are any less ridiculous. Real property laws make way more sense than IP laws. I can't arbitrarily claim that your refrigerator belongs to me and hence make you disconnect it until you prove otherwise. No, if I want to claim that something belongs to me that's not in my possession the burden is on me to prove that I own the property before any action can be taken against the property. This is unlike copy protection laws where action can be taken against someone else's video or 'property' and then the burden is on the person that had their own video removed to prove, under penalty of perjury, they in fact 'own' it before it can be restored.

Copy protection laws are a perfect example of the fact that those with money buy laws. The public is not considered (ie: retroactive extensions), the artist is not considered (ie: the one sided penalty structure against artists that have upload their works). The service providers with money are somewhat considered (ie: DMCA exemptions, though they are costly) and the publishers and distributors are the most considered (ie: copy protection lengths and the one sided penalty structure).
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Anonymous Coward, 9 Apr 2016 @ 8:20am

Re: Re: Re:
"So the rest of your post is pure anti-copyright bullcrap"

You do realize that the reason Mike said the following

"Nor does the claim that copyright law is some sort of magic exception to the First Amendment because the Copyright Clause in the Constitution "came first.""

is because it is some IP defenders that have made these arguments and Mike was merely addressing arguments that they have made.

The whole point is address arguments that IP defenders themselves have made. Sure they may not be arguments you made, though you yourself have made some pretty ridiculous arguments, but they are arguments that IP defenders have made.
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Anonymous Coward, 9 Apr 2016 @ 8:41am

Re:
There is no free speech impediment in saying "you can't share someone else's work with the world without permission"

Perspective. Get some.
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Whatever (profile), 9 Apr 2016 @ 10:06am

Re: Re: Re: Re:
The problem here is that Mike's assertion is meaningless, and you only have to consider things like libel, slander, and hate speech to understand.

If you take it at face value, laws against such things would be unconstitutional because the first amendment came first. That's not how it works.

Copyright does end up with a sort of "magic" exception in speech because it allows for a limited time for a creator to "own" their work. However, it does not stop anyone from talking about the work, reviewing the work, or otherwise referring to the work. It does limit certain types of commercial speech, but that is clearly spelled out in the law and has passed constitutional muster over and over and over again.

"The whole point is address arguments that IP defenders themselves have made. "

No, it's really mostly an attempt to pull a selective opinion of what they said, and answer it with something that is nonsense.

Mike already knows that his hero lost not only a court case but a big part of his face over this very issue. The first amendment angle is dead as a dodo, but every 6 months or so he feels the need to whack the dead horse again in case it makes a little noise that he can call life.
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Whatever (profile), 9 Apr 2016 @ 10:07am

Re: Re:
Clue, buy one.
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Whatever (profile), 9 Apr 2016 @ 10:10am

Re: Re:
Actually, it is. If the photographer sells images for which he does not have the copyright (images obtained while committing a crime are very likely not copyright), then there is a case. The property owner could in fact be considered the copyright owner. It goes on with plenty more nuance about things like location, copyright on use of image, and the like. But you can read more on Google and you might understand better where this one comes from.
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Whatever (profile), 9 Apr 2016 @ 10:11am

Re: Re: Re: But... But...
Actually, the copyright would be on the presentation and such, and not on the work. However, if they made a new arrangement for the work, there is potential that the arrangement is copyright.
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Anonymous Coward, 9 Apr 2016 @ 10:38am

Don't blame the lawmakers, blame the entertainment industry for being allowed to create the copyright law that allowed them to use copyright law in the first place. While I don't think this is what the entertainment industry had in mind, it's other parties that are using copyright law the stifle free speech. Notice how it's not the entertainment industry stifling free speech through copyright law but its politicians, on-air personalities and third parties that are abusing copyright law in this instance.
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Anonymous Coward, 9 Apr 2016 @ 10:48am

Re:
7-2, and he based it off of precedent like lawyers tend to do.

Your trolling isn't appreciated.
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Anonymous Coward, 9 Apr 2016 @ 10:55am

Re: Re: Re: Re: Re:
Hate speech is protected by the 1st amendment. Do try to be accurate in your condemnations, hm?

Your reading comprehension needs work as well. He didn't say the first amendment came first. He said that because it was authored after the constitution was originally drafted that it takes priority over pre-amendment language. Thus the whole "amendment" label, y'know?

Copyright stops a large wealth of non-commercial speech and expression. One only need look at the recent effort by CBS Studios and Paramount Pictures to halt the release of a Star Trek fan video that was made as a labor of love and would've been distributed to free to the public. http://www.engadget.com/2015/12/31/star-trek-axanar-lawsuit/

Your trolling preys on the ill-informed.
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Anonymous Coward, 9 Apr 2016 @ 11:49am

Re:
Notice how it's not the entertainment industry stifling free speech

ContentID is what the entertainment industry demanded, and it stifles free speech by not allowing for fair use.
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Anonymous Coward, 9 Apr 2016 @ 12:59pm

Re:
I don't think you're supposed to take these silly Techdirt articles seriously. It's just the usual astroturfing.
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Anonymous Coward, 9 Apr 2016 @ 1:02pm

Re: Re: Re: Re: Re:
"IP is a privilege not a right."

LOL

uh, no. Anything I make or create is mine, not yours. That's called a natural right. But thanks for playing.
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Anonymous Coward, 9 Apr 2016 @ 1:20pm

Anonymous Coward, you really should do your own research because your IQ is starting to show through. ContentID is NOT law. It's something that Google/YouTube implemented to allow the entertainment industry to pull down copyright content that's uploaded to the video hosting site.

It's not what the entertainment industry demanded, it's what Google offered them to put a halt to lawsuits against the company and video hosting site.
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Anonymous Coward, 9 Apr 2016 @ 1:21pm

Re: Re: Re: Re: Re: Re:
Any writings etc. that you create are yours alone until you share them, whereupon they become shared and your control over them is reduced. Further, if you look at human history, most of of it occurred without the benefit of copyrights. Indeed writers and story tellers wanted others to copy their stories, as that was the way that they spread beyond their own mind.
Copyright has its origin with the printing industry, and then as a means of censorship. So for the first 200 years of printing authors had no copyright, but they did have control over their manuscripts, which printers found valuable as they needed manuscripts to create new books from.
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Anonymous Coward, 9 Apr 2016 @ 1:26pm

Re:
It's not what the entertainment industry demanded, it's what Google offered them to put a halt to lawsuits

Let us pull down content by some means or we will keep you wasting money in the courts == demanded.
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Anonymous Coward, 9 Apr 2016 @ 1:27pm

Re: Re:
I hit return too soon, should be:
demanded with menaces.
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Anonymous Coward, 9 Apr 2016 @ 2:35pm

Re: Re: Re: Re: Re: Re:
Once you release it nature has no way of stopping me from freely copying it. That's an act of government, not nature. So no, it's not a natural right. It's a government granted privilege.
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Anonymous Coward, 9 Apr 2016 @ 4:42pm

Re: Re:
You two seriously need to get a room.
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Lawrence D’Oliveiro, 9 Apr 2016 @ 4:45pm

Re: Anything I make or create is mine, not yours.
Unfortunately, confusing the genitive with the possessive seems to be a common pitfall of the English language.
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Anonymous Coward, 9 Apr 2016 @ 6:23pm

Re: Re: Proof of Insanity
"The People" get the government it deserves. This means that we are responsible for the corruption in government through our ignorance or indifference.

People like you that refuse to accept that are a blight upon their fellow citizens!

My words carry the weight of many great people and philosophers, do you also believe that George Washington, Joseph de Maistre, James Madison, Benjamin Franklin and many others need "Professional Help" too? Many of their own writings are echoed in my words and accusations!

With fellow citizens like you around, who needs enemies? You are the special kind of stupid that fails to tighten the lug nuts on their tires then blames the auto manufacturer when the wheels fall off!
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Anonymous Coward, 9 Apr 2016 @ 6:37pm

Re: Stop the Insanity.
Naw, we don't have to abolish copyright, we just need to knock it back down to 16 years and only allow it to apply to works of fiction, and ensure that there is a clause the expressly prohibits any current or future enforcement tool from being used for news, politics, science, or facts. Any attempt for a business to abuse a copyright tool should result in the protected worked associated with the abusive enforcement becoming public domain.
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Anonymous Coward, 9 Apr 2016 @ 9:16pm

Re: Re: Re: Re: Re: Re:
Unless you do work for the government, then its public domain. Or any number of scenarios, such as taxes. So no, your "natural right" is just that much bullshit. But thanks for playing.
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Anonymous Coward, 9 Apr 2016 @ 9:18pm

Re: Re:
Oh look another copyright cockroach crawled out of the woodwork.
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Greevar (profile), 10 Apr 2016 @ 12:25am

Re: Re: Stop the Insanity.
We actually do. Once people start reaping the benefits of a copyright-free world, they won't give it up willingly. A business built on content can adapt without copyright. We should not allow the abridging of free speech for concessions to profit concerns. Art and knowledge will survive a world without copyright. Free speech is withering under copyright.
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Toestubber (profile), 10 Apr 2016 @ 1:30am

Re:
Those links about Mr. Randazza just lead back to this very page, so, unfortunately, there's no way of confirming the details or substance of your claims.
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sophisticatedjanedoe (profile), 10 Apr 2016 @ 6:18am

Re: Re:
Yes, I messed up with the links. Sorry about that.

http://arstechnica.com/tech-policy/2016/02/embattled-copyright-lawyer-uses-dmca-to-remove-artic le-about-himself/

http://arstechnica.com/tech-policy/2016/02/embattled-copyright-lawyer-uses-dmca-to- remove-article-about-himself/”http://arstechnica.com/tech-policy/2016/02/embattled-copyright-lawye r-uses-dmca-to-remove-article-about-himself/?comments=1&post=30646271
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Anonymous Coward, 10 Apr 2016 @ 8:14am

Re: Re: Re: Proof of Insanity
Thank you for confirming my prior comment.

Appeal to authority is so convincing. No effort required, just point at something with a well known name on it - brilliant.

Lug nuts? .. and you want to be taken seriously?
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DDearborn, 10 Apr 2016 @ 8:19am

True Intent
Hmmmm

"..... copyright law doesn't require a showing of harm, as should be required under the First Amendment." If that were the litmus test for "free speech" it would not exist at all. But of course you know that, don't you. The wicked web some people weave.............
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Anonymous Coward, 10 Apr 2016 @ 8:31am

Re: Re: Re:
"If the photographer sells images for which he does not have the copyright then there is a case."

Replace the word photographer with the word anyone.

The statement applies if you have money, which has been recently recognized as being the same thing as speech. Some of those with lots of money (speech) are asking (demanding) the government to do this for them and therefore are also asking the tax payers to fund it.

The typical taxpayer does not have lots of money (speech) and therefore is not afforded the same copyrights. Their photographs can and have been appropriated by monied interests, but for some reason this is not a problem?

Yes - as stated in a prior post, free speech has a copyright problem.
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Anonymous Coward, 10 Apr 2016 @ 8:34am

Re: Re: Re: Re: But... But...
Is the act of printing sheet music considered a presentation?
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cpt kangarooski, 10 Apr 2016 @ 8:40am

Re:
It was 7-2 if I recall, and J. Breyer's dissent was particularly good.

Free speech is not unlimited

That is the starting position. Limits on speech, if they can be justified at all (an absolute right to free speech is also something that harms had support amongst Supreme Court Justices, and is an interesting idea), require compelling reasons for their existence and certainly should not be overbroad or harmful yet ineffective. By all means, give us a good reason to limit speech so as to provide copyrights, which will accomplish its aims and not go too far. I'm willing to accept it. The devil's in the details, though.

But you are free to speak as much as you want... just not someone else's speech.

A family member of mine is involved with a local theater group that is putting on a Shakespeare play today. They didn't get permission from Shakespeare or his estate or successors. They'll be literally repeating someone else's speech, word for word. Are you really saying they don't have a free speech right to do so?

If they don't, how are they getting away with it?

If they do, you've conceded that there is a free speech right to repeat the speech of another, and the question is simply whether and what limits we might want to put on that inherent right. (note that this is what copyright law supports: the Copyright Act doesn't grant the public any rights, it just temporarily limits the public's inherent right and then frequently limits those limits so as to further let the public's right shine through -- when I quoted you, I wasn't using a positive right of fair use, I was relying on the doctrine of fair use to limit your ability to limit my right of free speech)
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That One Guy (profile), 10 Apr 2016 @ 9:04am

Re: True Intent
Say again? You very much do have to demonstrate harm if you want to curtail someone's free speech outside of copyright, you can't just say 'I don't like it' or 'I said that first' and have speech removed, you have to meet a pretty high criteria for a court to agree that it's allowable.

What's being said, how it's being said, and who it's being said about are all things that need to be considered, and if the one trying to have speech taken down or otherwise removed can't demonstrate any harm resulting from the speech, odds are good they're not going to get very far in court.

With copyright though none of that is needed, simply claim that you have the rights to something and the one-sided penalty structure of the law makes it almost a given that it will be taken down, and will stay down unless the target fights the claim.
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That One Guy (profile), 10 Apr 2016 @ 9:19am

Small correction
Before the abomination known as 'Right to be forgotten' was rolled out in several countries I should say, in which 'I don't like it' is now considered valid grounds to have speech removed.
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sophisticatedjanedoe (profile), 10 Apr 2016 @ 9:57am

Re:
Free speech is not unlimited

Trope # 3

(Also, pay attention to the Trope #1 as you used the term "hate speech" a-la Vizzini in another comment.)
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Anonymous Coward, 10 Apr 2016 @ 4:10pm

Re: Re: Re: Re: Re: Re:
Your greed and ego knows no bounds.
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Whatever (profile), 10 Apr 2016 @ 6:39pm

Re: Re:
"A family member of mine is involved with a local theater group that is putting on a Shakespeare play today. They didn't get permission from Shakespeare or his estate or successors."

Yes, congrats, you figured out that copyright has a time limit and expires. It's sort of like a 99 year property lease, at the end of the lease, the property (and anything on it) returns to the land owner. So yes, they can do Shakespeare, of course understanding that they could not do the same with something written more recently (say in the last few years) without obtaining the rights first.

"If they do, you've conceded that there is a free speech right to repeat the speech of another, and the question is simply whether and what limits we might want to put on that inherent right."

Copyright exists in it's own terms to further the art, and the natural trade off is between allowing a type of ownership of a work you create, versus the public's free speech rights.

"I wasn't using a positive right of fair use, I was relying on the doctrine of fair use to limit your ability to limit my right of free speech)"

I wasn't riding a horse, I was in the air and the horse was magically under me. Doesn't matter how you phrase it, it's exactly the same thing. Thanks for making all my points for me!
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Whatever (profile), 10 Apr 2016 @ 6:46pm

Re: Re: Re: Re: Re: Re: Re:
The problem with your argument relates to the shift in the ability to reproduce and distribute the works.

In the first 200 years of printing (and even more recently), typesetting was a royal pain in the ass, literally requiring every letter to be set by hand so that the page could be printed. It might take a day to set and print only a few pages, so it took a long time to print books. Making a copy of someone else's work was, well, work. Most printers and publishers wanted fresh material that was exclusive to them, which would give them the maximum profit potential for their considerable efforts to print and distribute the work.

So at the time, copyright as we know it today wasn't as meaningful, because copying something wasn't a particularly smart or profitable business model. The arrival of bulk printing and mass market books (especially paperbacks) since the 40s and 50s have really shifted the model and made reproduction by itself into a business model. For some, it's more profitable to re-print (with permission) a popular book than it is to look for new material.
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cpt kangarooski, 10 Apr 2016 @ 7:26pm

Re: Re: Re:
It's sort of like a 99 year property lease, at the end of the lease, the property (and anything on it) returns to the land owner.

Yes, very much like that. Creative works inherently belong to the public, not to their creators. The public may choose to temporarily grant rights to creators, or not, as it sees fit; creators cannot unilaterally impose their wills on the public. Thanks for agreeing with me.

Copyright exists in it's own terms to further the art

Well, following what we agree on above, copyright is created by our public servants to further the interests of the public; it doesn't simply pop out of nowhere, and it isn't a right authors inherently have. This means of course that it can be changed, in accordance with the public interest, and in an extreme case, could even be abolished if that's in the public interest.

A corollary is that it doesn't exist to further art per se; it exists to further the public interest with regard to art. Sometimes this may mean encouraging the creation and publication of works by offering a valuable monopoly. Other times this may mean encouraging the free use, copying, altering, and distribution of works by canceling or limiting the monopoly. And in any event, the metric at issue is the public good, not the interests of mere authors.

I'm glad we agree.
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Anonymous Coward, 10 Apr 2016 @ 9:56pm

Re: Re: Re:
Copyright exists in it's own terms to further the art

When was the last time an artist produced something and furthered the art in the seventy years after he kicked the bucket?
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Whatever (profile), 10 Apr 2016 @ 9:57pm

Re: Re: Re: Re:
"The public may choose to temporarily grant rights to creators, or not, as it sees fit; "

Fail. The public doesn't get the change the contract in each case, nor do they get to recsind the lease because they feel like setting up a tent there. It's X years and you don't get to pull control in the middle.

" copyright is created by our public servants to further the interests of the public; it doesn't simply pop out of nowhere, and it isn't a right authors inherently have."

Incorrect. Natural right says that if I create something, it's mine. Copyright only helps to more clearly define that in legal terms. It is very much in the putblics' interest to encourage creation, and to encourage those who are best it it to be able to do it more.

" Sometimes this may mean encouraging the creation and publication of works by offering a valuable monopoly. Other times this may mean encouraging the free use, copying,"

Alas, it is just about impossible to define this in legal terms. It's would also create uncertainty for creators which may discourage them from the creation or may make it that they cannot dedicate their time to creation. Copyright works most of them correct because it's net effect is to reward creation and encourage more of it. It goes a step further by encouraging that "more" not to be "replication" but rather new work. That is also clearly in the public's interest overall.

So sorry, we don't really agree. You can try to twist the words but then you are just avoiding the truth.
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Whatever (profile), 10 Apr 2016 @ 10:01pm

Re: Re: True Intent
Actually, the not liking isn't on an individual basis, but rather in that space between political correctness and public opinion. It's why as an example we have the "F" word and the "N" word, why you can get in trouble these days for saying someone is "retarded" and why you rarely see anyone smoking on TV anymore.

Society has collectively decided these things are bad, and doing them will get you in trouble.
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Anonymous Coward, 11 Apr 2016 @ 12:33am

Re: Re: Re: Re: Re: Re: Re: Re:
For the first 200 years of printing, copyright was a license to a printer from a censoring organization, licensing the to print and distribute a work. It had the side effect, which was its main benefit to the industry, of preventing direct competition for an individual title. This advantage had less to do with the time to set a book, but rather the batch nature of printing. Books were not printed individually on demand, but rather by the tens or thousand or more, in a process where all the copies that were expected to sell were printed before the first sale could be made. That is why the printers fought so hard for a new version of copyright when the censorious version was abolished.
Note, the reason for creating new works has not changed, and that is the desire to tell a story, or pass on information. Any ability to make money from the creation is a secondary reason. The exceptions are mainly in the music , film/video and sports, where performers think that fame should equal being insanely rich.
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jameshogg (profile), 11 Apr 2016 @ 3:31am

A law that forbids a work from being expressed in another language if the "property" holder chooses is an assault on freedom of expression.

A law that forces historians who speak other languages to only do their research through secondary sources as a result of deliberate language barriers is an assault on freedom of expression.

Because as Christopher Hitchens once rightly said, freedom of expression is not just about the right of someone to speak, but it is also the right of everybody to read and listen.

Shutting off books with artificial language barriers is isolationaism, anti-free trade and anti-globalisation (yes, globalisation is a good thing and this is one reason why). Democracy and pluralism IS up for export to all of civilisation in the face of dictatorship and authoritarianism. The best way of doing this is to make all literature available in all languages so those who want to retaliate and rebel against their unelected leaders know how and why to do so. Copyright stands in the way of that with its language barriers.

Or tries to, rather. Thankfully because copyright is unenforceable we can tell such a law to go to hell and translate however we please, even if it is somewhat underground. It should be morally self-evident to everyone that copyright is a farce and would be very ugly if it really did have the power it wishes to have. But no, we'd rather get hysterics such as "Google must have Content-ID on its Google-translate program!!!" before people will ever realise this.

Let me repeat once again: there's a reason why a JPEG dollar would be laughed away as a medium of legal tender. There's a reason why libertarians call for a gold-standard instead of a salt-standard. There's a reason why Bill Hicks' joke "Dirt For Sale" in Sane Man is funnier than it seems: Creating scarcity from abundancy doesn't work and never will.

If you want to protect your property - or labour, rather - name your price on Patreon, however high you want that price to be. It really is that simple, and there's no contradiction in rights either.
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Anonymous Coward, 11 Apr 2016 @ 4:25am

Re: Re: Stop the Insanity.
Naw, we don't have to abolish copyright, we just need to knock it back down to 16 years and only allow it to apply to works of fiction, and ensure that there is a clause the expressly prohibits any current or future enforcement tool from being used for news, politics, science, or facts.

Naw, we don't have to abolish slavery, we just need to knock it back down to those over 16 years of age and only allow it to apply in the southern states.
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Anonymous Coward, 11 Apr 2016 @ 4:28am

Re: Re: Re:
I can't help but notice that you're using words you didn't create.
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Anonymous Coward, 11 Apr 2016 @ 4:29am

Re: Re: Re:
Yes, congrats, you figured out that copyright has a time limit and expires.

Wow! That needs to fixed! I hear they're working on it.

/s
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Anonymous Coward, 11 Apr 2016 @ 4:55am

Re: Re: Re: True Intent
No - certain political activist groups decided they were bad and threaten anyone who tries to defy them with ruination.
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Anonymous Coward, 11 Apr 2016 @ 5:09am

Re: Re: Re: True Intent
The F word and the N word (as you put it) are not the same are they?
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Anonymous Coward, 11 Apr 2016 @ 5:11am

Re: Small correction
If there is a right to be forgotten (removing speech) and if speech is money, then I have a right to remove your money.
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nasch (profile), 11 Apr 2016 @ 8:07am

Re: Re: Re:
Actually, it is.

You're saying copyright is intended for the punishment of things like trespass and stalking. Wow. That's a new one even for you.

The property owner could in fact be considered the copyright owner.

No, he couldn't.
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nasch (profile), 11 Apr 2016 @ 8:14am

Re: Re: Small correction
If there is a right to be forgotten (removing speech) and if speech is money, then I have a right to remove your money.

It's the other way around, money is speech. So some people get more speech than others.
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nasch (profile), 11 Apr 2016 @ 8:15am

Re: Re: Re: Small correction
And before somebody replies with the reflexive rule or some such, this isn't math or logic, it's law. So the fact that money is speech doesn't mean speech is money.
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Whatever (profile), 11 Apr 2016 @ 10:56am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
"Note, the reason for creating new works has not changed, and that is the desire to tell a story, or pass on information. Any ability to make money from the creation is a secondary reason. The exceptions are mainly in the music , film/video and sports, where performers think that fame should equal being insanely rich."

Actually, you got the first part right, but you don't even understand what you have said.

The desire to tell a story is important - having the TIME to tell it is the key. So many people have a great book, novel, or screen play that they never got around to writing. They didn't have the time, their job left them too tired, you know all the old excuses and reasons.

One of the great things about copyright is that it allows an author to (gasp) market their work, license it, enter into a publishing deal about it, and perhaps maybe just about make enough money to have the time to write another one and start all over again.

The world is a better place because authors like Stephen King, Greg Bear, CJ Cherryh, and others had the time and the financial resources to be able to spend the time to write entertaining books. Had King and Bear remained as teachers or Cherryh been an archaeologist, we would have been denied their works. The system that provides them the means and the time to produce those works is really quite important and yes, advances the arts and is certainly in the public's interest.

"Books were not printed individually on demand, but rather by the tens or thousand or more,"

It's still mostly the same. The only difference now is that manual typesetting and binding isn't part of the game anymore, so the ability to produce ANY work quickly is there.
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nasch (profile), 11 Apr 2016 @ 11:09am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
You're basically arguing for the superstars get rich and everyone else gets nothing model. What we're moving to is a model where maybe the superstars don't get so rich (and the middlemen definitely don't), but more people can make more money, and it's FAR easier for just anyone to create and distribute things, either for money or not. Now since you claim to be pro-artist it seems like you would be in favor of this, but strangely you seem to favor the gatekeeper/superstar model.
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Anonymous Coward, 11 Apr 2016 @ 11:13am

Re: Re: Re: Re: Small correction
ie: the law is not logical nor does it add up.
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nasch (profile), 11 Apr 2016 @ 11:16am

Re: Re: Re: Re: Re: Small correction
ie: the law is not logical nor does it add up.

Can't argue with that.
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Anonymous Coward, 11 Apr 2016 @ 11:30am

Re: Re: Re: Re: Re: But... But...
Yes. Warner Music has a copyright on that specific instance of the sheet music. That is their protected expression. As in, you can't photocopy sheet music from their book and sell it yourself.

The underlying work, the actual Vivaldi piece, is in the public domain and no longer protected by copyright. So, you are free to make your own sheet music of the score, and sell that yourself. You could also put a little "copyright Anonymous Coward" if you want.

Likewise, if you were to record your own performance of that Vivaldi piece, you would own the copyright in that specific recording of the score; i.e. no one else would be allowed to distribute or sell it. But you wouldn't be able to stop anyone else from recording and selling their own performance of that same Vivaldi piece.*

* N.B. Because of the way that compulsory licensing works in music, an artist generally can't stop other people from recording covers of a song even if the composition is still protected by copyright, so long as the cover artist has paid the compulsory license rate (which is generally negotiated between Performance Rights Organizations and Congress in the US, and collected by the Harry Fox Agency).
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Anonymous Coward, 11 Apr 2016 @ 11:54am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
So many people have a great book, novel, or screen play that they never got around to writing.

If you wait until somebody pays you to write it, that great work will never be written. Also depending on how long it takes somebody to develop their story telling skill, it may take a dozen books, and/or a dozen rewrites to reach the level of producing a book that will attract a large enough audience for them to make a living from their work.

The system that provides them the means and the time to produce those works is really quite important and yes, advances the arts and is certainly in the public's interest.

Meanwhile just to point to one place, there are more people creating content on Youtube that would interest any single person than they have any hope of following. Some of them have even managed to turn their YouTube channel into a source of income, by building a fan base prepared to support the, rather than any actual reliance on the protection of copyright.
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Whatever (profile), 11 Apr 2016 @ 4:08pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"If you wait until somebody pays you to write it, that great work will never be written."

Not the idea at all. They aren't getting paid to write, they are getting paid what they WROTE. The real idea is that ownership of a work (and the ability to assign it, license it, etc) means that authors can put themselves in a position to have more time to write in the future and have to worry a little less about feeding themselves and their families.

" YouTube channel into a source of income, by building a fan base prepared to support the, rather than any actual reliance on the protection of copyright."

You are correct. The problem here is that if YouTube turns off their channel or decides to change the ad model (and they can) then that user is left with NOTHING - and less than nothing in reality because they have assigned rights in perpetuity to Youtube, so they can't even easily resell their work in other places.

Youtube isn't any different from signing a publishing agreement, except that the publisher runs the whole show and can cancel out at any time, but retain all of their rights.

You also miss the bigger point: Most writers don't WORRY about copyright - they worry about building fans and audience for their works. Copyright isn't a "they must make monay" system, rather it's the mechanism by which they can legally assign rights and end up getting paid. Most YouTube creators don't know or don't realize that YouTube is essentially a very greedy publisher, and put in the right terms should be the subject of a scornful Techdirt piece about greedy publishers. But that's a story for another day.
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Joe Thorpe, 11 Apr 2016 @ 6:01pm

Re: was it really though?
Copyright law was different in kind and arguably intent. Example - translations were exempt then from copyright law, they were held to be original works!
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cpt kangarooski, 11 Apr 2016 @ 6:44pm

Re: Re: Re: Re: Re:
Fail. The public doesn't get the change the contract in each case, nor do they get to recsind the lease because they feel like setting up a tent there. It's X years and you don't get to pull control in the middle.

Sure you can. Just look at the 1976 Copyright Act. In the 2000s, Congress created a new exception to the public performance right at 17 USC 110(11). On one day, it was at the very least arguably infringing to create censored versions of movies without a license or the rights to do so. The next day, it was totally legal. Another example would be 17 USC 1008, which took away the right of copyright holders to sue certain copyright infringers.

The deal can be changed pretty much anytime; the public holds all the cards.

Incorrect. Natural right says that if I create something, it's mine. Copyright only helps to more clearly define that in legal terms. It is very much in the putblics' interest to encourage creation, and to encourage those who are best it it to be able to do it more.

It's you who is incorrect here. There is no natural right of copyright, which goes a long way toward explaining why copyright didn't exist anywhere until 1710, and then only in England; it took until well into the 19th and 20th centuries to spread it to the rest of the world (and often through colonialism, rather than on its own merits).

Creating something doesn't make it yours. Example: all architectural works created in the US prior to 1990. If you want to make an exact duplicate of Fallingwater, or the Space Needle, you're absolutely free to do so. The creators of those works had no rights to them. No one did.

Further, your own claim contradicts itself; if copyright existed naturally there'd be no need for us to write laws to do it. It would just happen.

Alas, it is just about impossible to define this in legal terms.

Wrong again. This is actually all that copyright is -- it sometimes encourages the creation and publication of works and sometimes doesn't. It sometimes limits the incentives it offers authors and sometimes doesn't so much. It's not at all hard; our copyright tradition has been going along well for over 300 years.

Further, there's a really clever way of even accomplishing this sort of thing at the level of individual works: formalities. Just put small obstacles in the path of authors to test their desire for copyright. If they surmount the obstacles, they must want a copyright and may merit one. If they don't bother to do so, they clearly don't want a copyright and their works can be left to enter the public domain immediately.

It goes a step further by encouraging that "more" not to be "replication" but rather new work. That is also clearly in the public's interest overall.

Wrong once more! I guess you win the case of Turtle Wax and the year's supply of Rice-a-Roni, the San Francisco treat. It is good for the public to have original creative works created and published. It is equally as good for the public to have derivative works created and published. And it is perhaps even better for the public to have works not be copyrighted so that everyone is free to use and enjoy those works as they like.

The trick behind copyright is that the greatest public good can be achieved with a very small amount -- just a handful of years -- of delayed gratification. It doesn't scale evenly though; after a short burst of maximal incentivizing effect, the incentives become subject to diminishing returns.
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Anonymous Coward, 11 Apr 2016 @ 10:20pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Except that you, antidirt and others have previously argued that if copyright terms were reduced to something like the life of the author or a little less than life plus 70 it would immediately disincentivize creators from making content.

Still waiting for the explanation why the length of over a century matters that much, considering the time where "creation" actually happens isn't even half that amount of time...
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Anonymous Coward, 12 Apr 2016 @ 12:20am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
You are correct. The problem here is that if YouTube turns off their channel or decides to change the ad model (and they can) then that user is left with NOTHING - and less than nothing in reality because they have assigned rights in perpetuity to Youtube, so they can't even easily resell their work in other places.

The funny thing about YouTube and similar Internet services is that while they require a perpetual license to allow them to distribute a work, it is not a unique license, and does not involve assigning them the copyright.
Further, many that make their living from their YouTube channels do so via Patreon or other systems that allow people to throw them some money. If YouTube went away, they can move their content to a different distribution channel. It is anybody who has assigned their copyright to a traditional publisher that cannot do anything if the publisher loses interest in distributing their work.
Copyright is of more benefit to those who business model is based on gaining total control over the works of others, where that control includes deciding what works are actually made available to the public, so that they can maximise their profits at the expense of the creators whose works they do NOT keep in publication.
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Wendy Cockcroft, 12 Apr 2016 @ 5:42am

Re: Re: Re: Proof of Insanity
RE: Slavery, the reason it was so valued was twofold:

1. it created pariah underclass beneath the "poor white trash."
2. it made slaveholders a lot of money, particularly during the golden age of cotton in the South.
3. owning slaves was a status symbol

RE: the rest of your screed, your racist slip is showing.

RE: Socialism, learn what words mean. Red Scare dog whistles don't work on smart people. When they work on stupid people, programs we actually need get shut down in the name of fighting socialism and every idiot cheers it on until they need the programs that have been shut down...
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Wendy Cockcroft, 12 Apr 2016 @ 5:43am

Re: Re: Re: Re: Proof of Insanity
*threefold
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Wendy Cockcroft, 12 Apr 2016 @ 5:48am

Re: Re: Re: Re: Re:
Natural right says that if I create something, it's mine.

Then why would that right have a legislated expiration date?
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Karl (profile), 12 Apr 2016 @ 11:52am

Re: Re: Re: Re: Re:
Incorrect. Natural right says that if I create something, it's mine. Copyright only helps to more clearly define that in legal terms.

This is completely false. U.S. copyright law is not, and was never, based on the natural rights of authors:

The enactment of copyright legislation by Congress under the terms of the Constitution is not based on any natural right that the author has in his writings, for the Supreme Court has held that such rights as he has are purely statutory rights, but upon the ground that the welfare of the public will be served and progress of science and useful arts will be promoted by securing to authors for limited periods the exclusive right to their writings. The Constitution does not establish copyrights, but provides that Congress shall have the power to grant such rights if it thinks best. Not primarily for the benefit of the author, but primarily for the benefit of the public such rights are given. Not that any particular class of citizens, however worthy, may benefit, but because the policty is believed to be for the benefit of the great body of people, in that it will stimulate writing and invention, to give some bonus to authors and inventors.

In enacting a copyright law, Congress must consider two questions: First, how much will the legislation stimulate the producer and so benefit the public; and second, how much will the monopoly granted be detrimental to the public? The granting of such exclusive rights under the proper terms and conditions, cofers a benefit upon the public that outweighs the evils of the temporary monopoly.

- H.R. Rep. No. 60-2222

It may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not "some unforeseen byproduct of a statutory scheme."... It is, rather, "the essence of copyright," ... and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but "to promote the Progress of Science and useful Arts."

- Feist v. Rural

The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.

- Fox Film Corp. v. Doyal
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