Lessig

Under that opinion, Google might go ahead and offer the complete text of all books to everyone, as long as they "transform" it by highlighting a couple of search terms.

Then again, in the case in question, the webpage content was offered to anyone for free, in contrast to books. The court does rely on that fact in the fair use analysis. That does seem to weaken any claim based on this opinion in the Google Book Search case.

Nobody has done it yet because it's technically impossible, using our present computer systems, to ensure no patron is able to redistribute - in a flash, no less - a complete copy of that work.

Digital libraries like you describe would be entirely possible if we had a meaningful drm system, but that won't come until all out systems employ a means of making, at least some part of them, "trustworthy" (ie the copyright owner can trust that our system plays by their rules). And don't look now, but that idea isn't at all popular with the "commons-ists."

Thank you, this file I succeeded to open with my computer (iBook G4).
Will try to read through in my free time.
Now trying with the translation works, though. Cheers.

Speaking of Google cache and fair use, I wonder what you think of Scroogle?

Their "copy" of Google's search engine is here.

From the judgement:
"But when a user requests a Web page contained in the Google cache by clicking on a "Cached" link, it is the user, not Google, who creates and downloads a copy of the cached Web page. Google is passive in this process. Google's computers respond automatically to the user's request. Without the user's request, the copy would not be created and sent to the user, and the alleged infringement at issue in this case would not occur. The automated, non-volitional conduct by Google in response to a user's request does not constitute direct infringement under the Copyright Act. ... Summary judgment of non-infringement in Google's favor is thus appropriate."

I'm a bit confused by the logic here, and probably unfamiliar with some of the legal definitions. It is not 'direct infringment', therefore it is 'non-infringement'? Is there no room between the two? I would have to presume that if 'direct infringement' means something other than 'infringement', then the logic here is faulty.

Also, doesn't this judgement contradict the decisions (which I have not read) regarding music copyright? It seems like an exact parallel with Napster: user makes available for distribution, but actual copy is made as a result of distant request, without which no copy would have been made. Why was this not a defense for those cases?

--nate

poptones--
Copyright law does not require that lenders operating under 109 take even the least step to prevent their patrons from being able to make copies of works. A library may, for example, lend a CD, which is digital, and from which I may make identical copies.

The reason that libraries don't lend works via the Internet et al is because they would be making a new copy in the process. And while there is a broad exception for distribution under 109, there is not a similar exception for reproduction. The best libraries get is 108, and it's honestly not all that good.

As for DRM, I remain absolutely against it, and in fact favor reforming the law to attack the concept. OTOH, I do favor an exception for natural persons to engage in otherwise infringing behavior if done noncommercially. While this wouldn't apply in the context of libraries lending through telecommunications, I think it would appease the same desire in the end.

You've been around long enough that you should know the actual reasons for the lack of Internet lending. I'm disappointed that you instead used the question to jump into DRM advocacy.

Nate--
There are two kinds of infringement: direct and indirect. Direct infringement is where a defendant himself infringes, e.g. by making a copy of a work unlawfully. Indirect infringement is where a second defendant somehow assists the first defendant, e.g. by providing the facilities for the direct infringement (in certain ways).

Basically D2 is being held responsible for D1, due to the connection between the two. The nature of the connection is of critical importance. For example, if I let anyone make xeroxes on my xerox machine, and it's left unattended, then that's not enough of a connection to support an indirect infringement claim. OTOH, if people give me their documents, and I do the xeroxing myself, at their request, that could be sufficient. This is because, under one indirect infringement theory (contributory infringement) what I know at the time of the infringement is relevant. In another situation, if the direct infringers are my employees, and they're making these xeroxes for work, then my knowledge might not matter if I am pursued under a different theory (vicarious infringement).

One important thing to remember is that you cannot have indirect infringement without an underlying direct infringement.

As for comparing this with Napster, the cases are distinguishable. In this case, arguably, the users are engaged in direct infringements, just as Napster's users were engaged in direct infringements. Napster, however, had greater knowledge than Google appears to here (as they continued to contribute even once they knew of infringements) and apparently a closer relationship with their users (having the right and ability to ban them from Napster, which it did not exercise).

(Take that with a bit of a grain of salt, though. I haven't had a chance to read the Google decision yet, so I've just been stating generally how things work, and assuming that Google was probably distinguishable on certain points since it'd be hard to reach the outcome where they won if it wasn't so)

Three Blind Mice--
how can Google be considered as “passive in this process”?

Lack of human intervention. In the 90's there was a case in which someone put up infringing materials on their web site, and they and the ISP were sued. This was before the 512 safe harbor. The ISP got off the hook because they didn't control or even look at what the user put in his account, and got paid a flat fee. Basically their servers were owned by them, but left unattended in the control of their user (to the extent that it mattered). I don't recall the cite, but it had something to do with a national fire department association, and I think it was in Florida. I imagine someone can find it given that.

poptones--
Exactly.. beyond their control. This is the point I made and the one which Josh, you failed completely to address in your legalese mumbo-jumbo attempt at sounding high minded. Secion 109 blah blah blah blah - the fact is publishers would be allowing electronic copies of their works if they had a proper means of policing them - of ensuring that “borrowers” remained just that.

Right now copies lent out from a library under 109 are beyond the control of copyright holders. So are copies that they sell. So what?

If some authors won't publish their works because libraries might buy copies and lend them out, then so be it. We have to consider what's in the best interests of the public. And while having more works created and published is in the public interest, having those works be unencumbered by copyright (both in that terms should be short, and copyright should be narrow in scope) are equally in the public interest. Given the large number of authors that seem to be okay with works being lent, and the likely small number of new works we'd get if we stopped having libraries, I'll take the libraries. The libraries are more valuable than the additional works are.

So too is it with Internet lending. Given the inescapable deep flaws of all DRM -- its inflexibility, its permanence, its extraordinary potential for abuse by authors -- I don't think that any benefit that we could get if DRM exists is actually worth it. When there is DRM, the public loses more than they gain.

For example, in the case of Internet lending, you suggest that DRM could be used to ensure that people merely borrowed a work, and nothing more. Of course, that's precisely the sort of stupid thing that you get from DRM. When I borrow a copyrighted work from the library now, I can engage in fair use, I can use it for educational purposes under 110, I can lend the work out to others (so long as I still return it, etc.) and so on. Your suggestion is to sharply limit what I can do. The convenience is not worth it; not worth it by far. Especially since copyright holders still have a panoply of legal rights against me in the hardcopy lending scenario, which they may exercise if I do something illegal. Those rights are equally as available if we were to have statutory Internet lending. Those rights are sufficient. Copyright holders do not need more. Hell, they could probably have far less, and they'd still publish just as much as they do now.

All we have to do, if we want Internet lending, is to tweak the law to allow it. DRM is not necessary, and in fact would be actively harmful as it would drain so much of the value of borrowing a work that it could not even rightfully be considered on par with library lending now.

Your attitude on this can be compared to that of a box of crabs

I have no idea what you're trying to say with most of your paragraph there. Want to try again?

You talk of “free culture” but in this context your free culture is only “free as in beer” - for without the opportunity to make that choice between “give” and “sell” there is no freedom but only the tyranny of technology.

Actually I don't recall ever using those words. Maybe you're confusing me with Prof. Lessig, in which case I'll take that as a compliment.

In any event, you're wrong about me. I think that copyright should consist of a set of basic rules which serve the public interest to the greatest degree that they may be served. That this may not optimally serve authors is of no consequence; authors only should benefit from copyright in their capacity as ordinary members of the public (e.g. authors can use public domain works just like everyone else) or where giving them a small boon is just a step in exploiting them for something of greater value (such as granting the smallest copyright that yield the greatest creation of works). While there are of course situations in which a small group might need to deviate from these broadly applicable rules (e.g. licensing a book to a movie studio so that a movie can be made from it), allowances for that should be crafted so as to limit opportunities for abuse (e.g. EULAs should be unlawful almost all of the time; selling a copy of a program just as one sells a copy of a book, and having exceptions that allow for their different natures, is a better way to go. Consider sections 109, 117, etc.).

Naturally authors who comply with the system should have the choice to give away copies of their works or sell them or when it isn't harmful to the public to license them. And they should have the ability to protect their rights through the courts. But permitting DRM is like allowing people to carry a shotgun to guard against emotional distress torts. I'd rather have a one size fits most law and I do not like the idea of permitting significant deviation from that.

If authors don't like it, they can either put up with it or change professions. Even if we lose them, I think it would be worthwhile given the big picture. But then, that's because I care about the public, not authors specifically.

poptones--
I, as a creator of a work, have every right to choose the method of publication and of expression.

I absolutely agree. But I don't think that you ought to get a copyright unless your work and the method of its publication fall within certain boundaries set to serve the public interest.

Thus, under my ideal law, if you publish in plaintext, you get a copyright and can enforce it in court. If you publish with DRM, you get no copyright and no right to pursue circumvention, reproduction, etc. In fact, if feasible, you'd get a department of the Copyright Office with the mandate of encouraging and coordinating attacks on DRM, and of encouraging the dissemination of anti-DRM tools and unencrypted versions of your work, which, by virtue of being DRM'ed, would be in the public domain. The Library of Congress already has a number of public domain works on their website -- it'd be nice to have yours added to that, if you chose to go the DRM route, rather than the copyright route.

There.. have I violated your rights now? Do you speak russian?

Are you suggesting that Russian is a TPM?

I choose to produce only encrypted works and you choose to pay me for them whose rights have been violated?

Why must you persist in ascribing positions to me which I do not hold? I never said that I was against DRM because it 'violates my rights.' The notion is silly anyway. I'm against DRM because I think that copyright is a quid pro quo, and if you want the quid of copyright, the quo of a DRM'ed work is not good enough. This is not a private arrangement we're talking about, where people should be free to make one-sided deals. This is a trade with the public at large, and there is nothing whatsoever good about having everyone get taken for a ride.

And don’t even try that nonsense about public domain 100 years from now.

Nonsense is never a good word to use in conjunction with the public domain. I take the public domain very seriously, as did the framers, because without works meaningfully entering the public domain, copyright is never appropriate. I would not tolerate DRMed works being copyrighted regardless of the length of the term. Although speaking of term length, that's bad too. Again, if Congress did things right, terms would probably be only a few years long. Maybe 5 to 25 years. And the scope of copyright would be reduced too. And formalities would become of more importance. (And n.b. that formalities are a good way of ensuring that works do enter the public domain, and do so in a meaningful way)

And authors would, in the main, not change professions. They would still make works, they would take the reduced protection offered to them, and comply with the greater formalities. The public would benefit greatly from the reduced copyright protections, and suffer but the slightest harm from a few authors or a few works dropping out. I'm convinced of this.

Copyright is basically like going to a diner and paying a few dollars for a sandwich. That's a fine trade. What's not acceptable is overtipping the waitress with a suitcase full of hundred dollar bills. It is wasteful of public resources, it is wholly unnecessary, and I will not stand for it. I don't care whether the waitress likes it. I don't even care if some waitresses have lifestyles that they enjoy so much that they would quit if they didn't get overtipped anymore. We need to return to sanity, and part of that includes discouraging DRM all we can. The current situation clearly shows that appeasing copyright interests by giving them more and more protection isn't stopping them from rolling out DRM and further taking advantage of the public. Thus, I say we actively fight them so that we return to the natural and proper situation of frugality with the currency of copyright.

Publishing is not what it used to be and we cannot just say that’s a tough thing for publishers. It also means it just might be a tough thing for us as well.

I disagree. Publishing is exactly what it always is. Marginal cost is going down, but that's been true since people were carving big hunks of rock. No pirate will ever have a lower marginal cost than a publisher. The technologies that lower costs are equally open to both.

We are all going to have to accept some new paradigms.

I won't be a copyright quisling. Copyright is a utilitarian system designed to serve the public good. Deviations from that are intolerable. I'm willing to accept that no one is perfect, and it will take time to home in on the ever-changing point at which copyright achieves its full potential and serves the public to the greatest possible extent. But at least there must be the good faith effort to get there, and continual progress along the path.

I can also refuse to publish it at all and you never have access to the information - period.

And that doesn't frighten me. I know perfectly well that a public expenditure in the form of copyright will attract a roughly proportonate number of authors. But there is a very real matter of diminishing returns; eventually you're better off not expanding copyright, even though an author does not publish and we never get his works.

It's acceptable. If the choice was between your works being published and libraries, you can suck eggs. I will side with the libraries because they are more valuable to me than you are.

There always comes a point when increasing copyright harms the public. Frankly, I think that point comes quite early, given that copyright is economic and most economic benefit comes to an author immediately, if there is any benefit at all.

So, if we had my copyright system, and you could publish a book and get $95 in profits over the course of the copyright, or we had the current system, and you could get $100 in profits over the course of the copyright, would that $5 really stop you from publishing under my system. I doubt it. And I am happy to take the chance, since the benefit to me is worth many many times a mere $5. And if you're too obstinate, I'm willing to take the chance that there are still many authors who are not.

Or I can publish it in paper form and share it only with licensees who agree to protect it as a trade secret - they still get the knowledge, I still collect profit from my work, but you never get access to it. How is that different than DRM?

Scope, mainly. If we bar large scale adhesive use licensing (which I advocate, though details need to be worked out), you'll never be able to get as much money as you would if you simply went the copyright route. The transactional costs are higher if you have to negotiate with everyone, and I think it's worthwhile to make you do so in order to keep you honest. EULAs are too prone to abuse, and need to be eliminated from the creative works world at least -- possibly altogether.

We have everything to gain and little to lose from DRM.

Wait, is today opposite day? Or do you really believe your own nonsense?

I’m a “copyright holder.” My 18 year old high school friend who draws anime and writes fiction is a “copyright holder.” If you infringe my rights or hers what recourse do we have? Hire a lawyer? Society does not benefit from creating a world where everyone is a publisher but the only “rights” we have are those we can afford to enforce.

And I'm also arguably a copyright holder. (Although I routinely place all my work in the public domain. If I wasn't incentivized to create a work due to copyright, I shouldn't have a copyright. It is wasteful.) So what?

And yes, hire a lawyer. I have no problem whatsoever with people enforcing their rights in court, since courts are actually competent where DRM is incompetent. Since costs and fees are recoverable if you win, it should be no problem for you.

Bringing suit against the RIAA or against Paramount or against Warner is a reasonable task - bringing suit against a thousand anonymous users who are sharing your work against your wishes is not.

Which begs the question of whether it should even be illegal for a thousand anonymous users to share your work. As I've said before, I advocate a broad exception for noncommercial activity by natural persons. So Alice and Bob copying your work on the Internet would be lawful. Carolco copying your work to sell copies, or show in theaters, or to use in their own work, would not be.

I recognize that more than any other proposal for copyright reform I have suggested that this could significantly lower authorial incentives. But given that we're living in this world de facto right now, I figure it won't seriously hurt to live in it de jure. Already people often pay money for works when they don't have to, and transactions of that nature would still be reserved to copyright holders. I think little would really change, and it's not as though copyright holders have many viable alternatives if we take some other steps as discussed above. That just leaves them with quitting or sucking it up. I think they'll suck it up and that we can live without the few that quit.

every wannabe producer publishing ... AMVs

What? Those guys have serious, serious 103(a) problems. Not only are they crazy liable to the songwriters, performing artists, and animation studios, but I doubt that they have any rights of their own. You have a lot of chutzpah, and little knowledge of actual, factual copyright law, if you're going to call them artists that need the protections of the modern laws.

You want to see an end to the old school publishing gatekeepers? DRM is the bullet for that gun.

Hah! DRM is how they will maintain their gatekeeping position. Independent creators will not be able to traverse the DRM systems they're erecting in order to compete with them. They will be deprived of the tools they need to create and publish because those are the same tools that can be used to pirate. Independents will be suffocated with DRM.

In fact, you would have to be blind to not see this. If the big publishers could possibly be threatened by DRM, why the hell would they be the ones pushing laws that protect its use? Why would they be rolling it out, and forcing other industries to respect it?

They are not stupid enough to sign their own death warrant. And they aren't.

Too bad its our children who will pay for that fear and laziness.

DRM never ever goes away. It is the long-lived nuclear waste of the copyright world, polluting things long after its day should be done. So how dare you say that a lack of it will harm our children? It is the presence of it, and of copyright terms that burden later generations, that harm them. One of my reasons for wanting to massively reduce copyright in length and scope is to be able to give the sum of our creative works to our children, for them to enjoy freely. I will not support having them shoulder our debts.

poptones--
And who gets to judge? the MPAA? George Bush? Jerry Falwell? The chairman of the board of Sony?

The people of the United States, via Congress, by setting out the boundaries in the Copyright Act.

For example, under the 1909 Act, failure to comply with certain formalities resulted in your work entering the public domain. The feeling was that copyright was fine -- so long as the author served the public interest in the appropriate way by not merely publishing, but including notice, depositing copies, etc. If he could not be bothered to do so, he would simply lack protection.

I think this is a good idea, and so likewise, I would suggest that the law be reformed so that if an author wants a copyright, among other things, he cannot use or authorize the use of DRM on his work.

Do I think authors will still be incentivized? Yes. Because we have a very long history of authors creating all manner of works and complying with the system. I think that if the 1976 Act had never come about, and we were still under the 1909 Act, we would have exactly the same corpus of creative works as we do with the 1976 Act. In fact, I think we'd have more if the 1976 Act had never happened. And more still if we had a law that was even better than the 1909 Act. Copyright is an incentive for creating works, but it is far from the only one, and it isn't even the only important one. Sometimes it's not even the most important one. We have so many incentives that a reduction of one of them is not going to have a significant impact.

Your entire position is based upon the fallacious notion that you have some “right” to access all works when and how you see fit.

No, my position is based on a utilitarian view of copyright. My position vis-a-vis DRM is that its harms outweigh its benefits and it should therefore be marginalized to the greatest extent possible.

I do not support the idea of a right to access all works. But I do not support the erection of artificial barriers around published works. And I do not support protection for finished unpublished works.

Under my proposed system, you're free to use DRM as much as you want. But everyone else is free to attack it and to share the underlying work if they can get at it. I have faith that they can.

ah, so if I intercept your bank account number or the mushy love letters you sent to your girlfriend then I should have the unconditional right to publish them simply because - by your own argument - they were encrypted?

My bank account number is not copyrightable even today. Copyright law does not stop you from publishing it. Privacy law -- which is utterly unrelated -- might have something to say, however.

As for the love letters, again, yes -- if they were encrypted, I should not have a copyright on them. In fact, if I was not incentivized to create them due to copyright, I should not have a copyright on them, and whether I was or not can be determined roughly by use of formalities. If I don't apply for a copyright, or publish the letters, or deposit copies, then I guess my motive in writing them was not copyright. Maybe it was love.

If an author will work without the reward of a copyright, I am inclined to let him. Just like how I would let you wash my car for free, if you wanted to. Why should I, a frugal person, pay for free things? Why should the equally frugal public pay for free works? Let's reserve payment in the form of a copyright for the works that need it, as evidenced by the author making a modest gesture to get it.

people will create alternatives because we want to, because we are driven by ideals.

And how many open source, legal, DVD players have you seen lately? If people stop making monitors that do not use DRM between the video card and the display, how successful will alternatives be that don't use that system. A system encumbered by patents and trade secrets and which cannot be accessed without money?

Can I, an ordinary consumer, write and perform a song of my own choosing, record it to DAT with consumer equipment, and make multigenerational copies on DAT? No. I have every legal right to. No copyright is involved but my own. But because of the threat the big names perceived, they keep me from acting lawfully.

Independants will be soffucated because, when they had the chance, they held their breath like spoiled children throwing a fit rather than working to secure their rights in the new system of commerce.

And yet, I propose that no one is suffocated at all. You are happy to kill small authors to protect big authors and people who knuckle under to big authors.

I want all the authors I can get -- I'm just not going knuckle under and I'm not going to give them one iota of protection more than I need to.

You're wasteful and you're dangerous to artists and the public at large. I'm very happy to be opposed to you. It keeps me from being in bad company.

Mice: I think you pinpointed the hole in the facts/logic in this opinion:

"fair enough, but the Cache is made by Google, stored by Google on its servers, and made available to the user to download.
how can Google be considered as “passive in this process”?
or is it users all the way down?"

The opinion addresses this. The court states: "Field does not allege that Google committed infringement when its "Googlebot," like an ordinary Internet user, made the initial copies of the Web pages containing his copyrighted works and stores those copies in the Google cache."

Whoa! So it looks like Fields alleges infringement only for the "non-volitional" copying that occurs when a user clicks on the "cached" link, and does not allege infringement for the original "volitional" copy made by google when it crawled the site.

Anyone have any idea why he may have done this? And what would have happened if he alleged both?

Poptones--
Hilarious. I’m sure all those dead people will be more than happy to voice their opinions.

Huh. I'm not talking about the framers, you know. Just looking around it appears as though I, and many other Americans are perfectly healthy. What's with you and your non sequiturs?

You keep saying ytour system is simpler and protects everyone but you keep talking about stacking law upon law, exception upon exception

Have you seen what we have now? It's hideously complicated.

Poptones and Common--
We had a system where works had to be registered. Problem then was it didn’t protect everyone

Sure, there are some things you definitely want to register, usually major works like a novel, manuscript, or film, but having to do it for everything? That’s just insane.

Precisely the point.

Not everything should be copyrighted. In fact, nothing should be copyrighted unless it needs to be. It is wasteful to grant copyrights to works where the author did not need the incentive. An author who needs it will be likely to seek it out. An author that doesn't care won't bother. So setting a small bar to getting a copyright is an excellent way of distinguishing the one kind of author from the other. Given that no one has a problem expecting everyone in the country to file their taxes, and that a copyright form is not significantly harder to complete than a change of address, it's not a challenge.

Given that copyright is an economic incentive, it makes sense to make part of the bar monetary. If the copyright holder is unwilling to make a miniscule investment (presently $30 -- compare to the hundreds of dollars for a trademark, and the thousands you usually need for a patent) then this is a good indication that the economic rewards that a copyright would give them were not part of their reason for creating the work. If that's the case, then again, the copyright probably wasn't their incentive and should not be granted.

These posts should not be copyrighted. Mine aren't, but why not yours? Most personal web pages, or doodles, or personal letters, or business memos also shouldn't be copyrighted. They don't need to be, and it harms the public to give away copyrights needlessly.

I don't mind copyrights being easy to get, but I do think that we shouldn't hand them out as though they were going out of style. When an author needs one, he can get one. And if he really can't manage to write down his address and send in a $30 check, then he really needs to moonlight as a waiter for a couple of days and find someone to fill out the form for him.

This whole automatic copyright idea is just the pits. It's tremendously wasteful, spending the public's rights needlessly.

poptones. extra style points for using cyrillic characters, but stay on topic dude. this has nothing to do with DRM. it concerns web pages whose owners knowingly and intentionally make them available to anonymous users via TCP/IP. there's no DRM, no password entry, no metatags telling webcrawlers to stay away, nothing that would affirmatively indicate to the public that the owner of the copyrighted page does not wish to make his or her page available to anyone.

The opinion addresses this. The court states: “Field does not allege that Google committed infringement when its “Googlebot,” like an ordinary Internet user, made the initial copies of the Web pages containing his copyrighted works and stores those copies in the Google cache.”

this answers our question, Josh S. thanks for finding it.

Whoa! So it looks like Fields alleges infringement only for the “non-volitional” copying that occurs when a user clicks on the “cached” link, and does not allege infringement for the original “volitional” copy made by google when it crawled the site.

that would be it, kemosabe. it IS users all the way down. heh.

it is not even an issue of fair use, it's the INTENDED use. by registering a URL with the DNS server, the copyright owner chooses to make his or her page available via TCP/IP to users on the WWW. every router makes a cache copy of at least a portion of the page (that's how TCP/IP works) and obviously the user's computer makes a cache copy. the copyright owner knows - or should know this. webcrawlers, spiders, etc are users (hardly passive ones, but no user is passive.)

from a technical point of view all Goolge is doing is linking a URL to a cache copy.... which is something we will have to think about.

poptones--
under this grand new system the government gets to pick and choose what “needs to be.”

No. The government just sets simple, content and viewpoint neutral criteria to be met: is the work copyrightable, did the author file for a copyright, is the work published, is notice attached to the works, etc. These are basically procedural issues, and they're very easy for authors to comply with. It is not materially different from the criteria for registration under the modern system, or filings under past systems.

Under your plan there would be no ciriticism of the government because the government damn sure wouldn’t be saying “dissent and critical speech works for the common good.”

Okay, you're an idiot. I never said that there should be or would be censorship. The worst thing that could happen to a work under my plan is that it enters the public domain. Whether or not it's still published in that situation depends on the willingness of the author. And news reports would be perfectly able to be copyrighted. The formalities don't change, but papers and news shows would be dab hands at sending in the paperwork. Of course, the value of a piece of news is really in its timeliness, not its copyright, so they'd probably have less of a reason to worry about it than most. In any event, requirements for copyright would be absolutely content and viewpoint neutral, and I dare you to find any place where I even hinted otherwise. I hate censorship, and I vigorously support the First Amendment, and I am pissed off that you would even suggest otherwise. Your accusations are totally baseless and deeply insulting.

An author that doesn’t bother doesn’t cost anyone anything.

If he controls whether I can lawfully copy his works, then some of my freedoms have been given over to him. When that temporary loss of freedom is more than compensated by the benefits of having works created and published that otherwise would not have been, then it may be worth it. But when they would have come about anyhow, there was no point in my sacrifice, in my payment of my liberty. So yes, it has a very real and significant cost.

Remember, authors don't have an inherent right to copyright, but everyone does have an inherent right of free speech which encompasses repeating what others have said. Copyright is a quid pro quo: I temporarily give up a little of my right to republish you, and you give me a work I otherwise would not have had. That's the heart of the system.

Three Blind Mice--
You mean John S.

Basic question (is this thinking right, or overcome by legal principle or precedent):

Since technically how the web architecture works is that when a client requests a file, the server makes and sends a copy of such file, any copyright violation happens at the server, is the act of the server and and is the responsibility of the server operator.

If I thus let my server copy and distribute my copyrighted files without restriction how can I have a complaint that others have my files?

Unless they are placed on another server which re-copies and re-transmits to other clients - at which point that other server is culpable - though it seems only weakly so, since any client could have requested and received the same file from the original server. And unless the server architecture demands it, the file might be available not just through some eyeball-to-screen human interaction, but by a simple machine request at a url like http://CopyrightHoldersSite.com/CopyrightedFile.

[call this "users need not worry" principle]

EP

OK fine, you call me an idiot so now I simply must quote - for a third time - what you yourself said. As you seem to have both forgotten saying this and are now incapable of seeing these words wiitten upon the page before you I will embolden certain parts in order ot better command your attention...

...I don’t think that you ought to get a copyright unless your work and the method of its publication fall within certain boundaries set to serve the public interest.

No copyright unless both the work and the method of its publication meets your muster for "public good." As you are not dictator and we - allegedly - live in a republic that represents "our" interests this means "no copyright unless your work and the method of its publication suits the common good.

What you have proposed is essentially a more technologically evolved version of Adams' infamous Sedition Act.

So you're right... I am an idiot - I am an idiot for ever getting drawn into a conversation with such a profoundly misinformed, unevolved bit of lawyer larva. It is obvious from your comments you have absolutely zero appreciation for the arts or those of us who strive to create beauty and reflect truth and are interested only in propogating an increasingly litigious society. More laws, narrower laws - let's carve a regulatory canyon so deep and so convoluted every citizen will be forced to retain their own personal law clerk or they will have no rights at all to their own creative works!

I'm not a bit sorry to say most americans would agree when I say your ideas are utterly foul. Therefore, as I said before, you are simply not worth the continued effort - you have marginalized yourself. DRM is coming - the tyranical society you espouse, thankfully, is not yet even on the horizon (and never will unless a great many things go terribly, terribly wrong in this country).

It is wasteful to grant copyrights to works where the author did not need the incentive.

Lack of copyright certainly did waste Robert Johnson's life.

An author who needs it will be likely to seek it out. An author that doesn’t care won’t bother.

An author that doesn't care needn't bother to assert his rights and it costs no one a thing. An author who chooses to assert his rights still costs us nothing, as he is asserting rights granted us all equally under the law

So setting a small bar to getting a copyright is an excellent way of distinguishing the one kind of author from the other.

Which worked so very well for Solomon Linda and his family. While The Weavers and their publishers "weemo-weh'd" their way to the bank his family starved and suffered in kenya. But that's ok, huh? Those Zulus live in a jungle half a world away, what need have they of money or copyrights on works they create?

You're advocating more tyrany. In this modern world where anyone can become a creator, an artist, and a publisher, you seem dead set on erecting barriers that only serve the interests of a "publishing class." We live in an era of information democracy and you are here telling us how great things would be to go back to the era where "publishers" and those under their employ were the only part of society "blessed" with the ability actually derive a living from creating and publishing.

You're offended by my comments? Why don't you go post your "better model for the future" on deviantart or one of the machinima boards and see what sort of response you get. Go post your ideas on the flickr discussion board and see just how well received your perverse ideals are among creative individuals.

Anyway..., call me an idiot no more, for I am truly well done focusing attention on your very bad ideas.

Rob... that's a good example of how DRM can go wrong when users don't RTFM, but it's not very unique. My cousin had the very same bad experience when he recorded a bunch of stuff on his XP laptop using Microsoft's WMA format without bothering to RTFM. But it's still no more an indictment of DRM than a flaming Pinto is an indictment of all automobiles. How you say... "govno slouchaetsyeh!"

Eric--
Since technically how the web architecture works is that when a client requests a file, the server makes and sends a copy of such file, any copyright violation happens at the server, is the act of the server and and is the responsibility of the server operator.

Well, MAI v. Peak, which despite criticism seems to be popular, would seem to indicate otherwise. The way that computers work is that each memory (e.g. RAM, hard drive, CD) is distinct, and information is copied between them. For example, I am writing this post, with the keyboard. Information is being stored in RAM on my computer. I can also save it to my computer's hard drive. If I do so, now there are two copies: one in the RAM, and one in the hard drive. I can change each independently of the other, delete one without affecting the other, etc. When I post it, I don't send information from my computer to a server in the way that someone would mail a letter through the postal system. Rather, I copy the information to the other computer, and most likely delete my copy when the other computer confirms that it has received it.

An analogy would be if Alice reads a book to Bob over the telephone, and Bob writes it down. In the end they'll have two copies: the master and the reproduction. But the reproduction didn't travel through the phone lines. It was created at Bob's end based on information that traveled through the lines.

And just as Bob is the one who makes the second copy in that example, so too are users held responsible for what they download. The Napster case briefly stated that downloaders were infringing on the reproduction right. The Utah Lighthouse v. Intellectual Reserve case that follows MAI said that when a web page is put up unlawfully, and a user looks at it, the copy the user necessarily makes (due to how computers work) was infringing. And the Marobie-FL v. NAFED case said that where you have a server that automatically responds to the controls of third party users, it's those users that are liable for how the server is used. The server owner (as distinct from yet another user that puts files on it) is not liable merely by making the server available.

Poptones--
“no copyright unless your work and the method of its publication suits the common good.

Yes. Of course, as already noted, this is content and viewpoint neutral. And the relevant public good is not, say, rooted in politics or morality (such as how immoral inventions used to be unpatentable). Rather, the public good consists of: 1) getting original works created; 2) getting derivative works created; 3) getting works published and keeping them in the store of collective knowledge; 4) having minimal copyright, if any at all; and 5) ending copyright as rapidly as possible.

Denying copyright to works because they are DRMed has a basis in all of these aspects of the public good, but mostly lies in 3 and 5. If there is no DRM, third parties have the best chance of preserving works. This is because often, in order to preserve a work, it must be moved from one format to another (e.g. transferring wax recordings to CDs) and reproduced (e.g. people making copies of classical works is the only way that they survived -- we have few original documents from antiquity).

A denial might be based on the class of work. For example, today, you cannot get a copyright on a pictoral, graphic, or sculptural work if it is useful and the useful part is inseperable from the non-useful part. You know those undulating bike racks? The creator tried to get a copyright. He was turned down, because there's no sculptural aspect to them other than being a functional bike rack. The protection of useful works is chiefly left to patents. Trademarks have a similar doctrine: working parts can't be trademarks. Wrong subject matter.

For books, software, music, audio and video recordings, sculpture, etc. copyright would be perfectly appropriate. But architecture? Boat hulls? Those really don't belong in the realm of copyright and traditionally they have not been.

Part of this is rooted in the first type of public good listed above. I don't think that copyright is incentivizing architects, for example, to create buildings. I think they would create buildings anyhow. Given that protection for buildings is so very new, I have a damn lot of history backing me up. And the effect of the real estate market, and improvements in CAD and building materials and so on have been what really drives architectural creation.

In any event a denial of copyright would never be based on what a work actually says, or who wrote it. If you want to quote something, quote that.

But did you think about what I've said rationally?

What you have proposed is essentially a more technologically evolved version of Adams’ infamous Sedition Act.

Nope. You went right over the edge of the cliff. You made up wild fantasies about my position, and then you believed them. They don't even make sense (as a lack of copyright is not equivalent to censorship) but that doesn't stop you.

lawyer larva.

Actually I sat for and passed the bar some time ago. I'm not in the larval stage.

It is obvious from your comments you have absolutely zero appreciation for the arts or those of us who strive to create beauty and reflect truth and are interested only in propogating an increasingly litigious society. More laws, narrower laws - let’s carve a regulatory canyon so deep and so convoluted every citizen will be forced to retain their own personal law clerk or they will have no rights at all to their own creative works!

As an artist (a professional artist, before I got into law) I assure you that I have great respect for artists. But that doesn't mean that artists should get a free ride at the expense of the public.

As a copyright lawyer in favor of copyright reform, I think that there should be less copyright litigation, and that reducing the scope of copyright (so that there's less to litigate over) is a good way to accomplish this goal. And I also think that copyright registration should be very very simple. It should be more simple than filling out a magazine subscription card. And in fact, if you look at the registration forms currently in use by the Copyright Office, you will find that that's the level of simplicity I'm looking for. It's little more than name, address, and title of work. Given that we're talking about creative people, I'm sure that they can manage to write their own names.

Lack of copyright certainly did waste Robert Johnson’s life.

Oh? And here I thought that he was murdered while his career was still in the process of taking off.

Which worked so very well for Solomon Linda and his family

Yes. If he wanted it, he should have sought it out. It's no different than being an inventor who doesn't bother to get a patent, causing his invention to hit the public domain. Or do you refrain from using the wheel, and fire?

Authors have no inherent right to copyrights. Copyrights are artificial monopolies meant to help the public, granted when it suits the public's interests. Given that artificial monopolies are inherently harmful, we ought to be quite careful about handing them out, limiting them to only those times where they somehow provide a benefit outweighing their inescapable harms.

You, on the other hand, want to give them out like beads at mardi gras.

In this modern world where anyone can become a creator, an artist, and a publisher, you seem dead set on erecting barriers that only serve the interests of a “publishing class.”

Not at all. I think it's great for people to act as independent publishers. But I think that that means they should rise to the occasion, rather than have us break our backs stooping to their level. I am asking very very little. Given the great power of a copyright, a tiny bit of effort on their part is not at all too much to ask. Go take a look at the existing registration forms. That's about all I want.

when users don’t RTFM

If you would pay attention, you would have noticed that it wasn't mentioned in TFM. And hey! How is it that you have a hissy fit over what I propose -- rules for authors that ought to be able to fit on a postcard -- while you assign blame to an author for not reading a relatively thick manual that doesn't contain the key information in it.

You're such a hypocrite, man.

Commons--
to just drop everything into the public domain that isn’t immediately registered

Actually, I propose taking a page from the US patent system on this one. A brief grace period between publication and the deadline for filing strikes me as a good idea. For patents, it's one year, and that sounds like a good number. Protection would need to be lower so that there would not be a submarine copyright problem, and so that there would be an incentive for rapid filing still, but I think it is feasible generally. Similarly, a degree of protection for unpublished (and thus unfiled) works would need to exist to guard against pirating manuscripts, but we need to be careful lest it be abused. (As the current equivalent presently is being)

Sometimes it’s about control, not just incentive.

Either it is an incentive or it isn't. If absolute control of a work is worth $30 to you, then go for it. If not, then feel free to not create the work. I'm happy to have copyrights granted so you can make money. I'm quite uninterested in having it be a way for you to censor others, save where those are intertwined. Thus, in commercial situations, or where commercial actors are involved, I think you should have control so that you can ensure payment. Where that's not the case, I honestly think that people should be free to use your work (provided they can access it) however they want.

I've seen too many unauthorized derivatives that were superior to the originals (some legal, like cover songs, and some illegal, like fanfic), too many works put in peril due to copyright holders having too much control, and too many members of the public being surprised that their behavior was illegal to buy into a control basis for copyright.

Forget the filing of the form for a moment, and consider that $30 over and over can be expensive, especially if you aren’t being paid immediately for your work.

Then my honest advice is to find a different kind of work, where you can make some short term profit to finance the long term stuff. Being an author, and being a publisher, means being in business and acting accordingly. I understand that in a copyright system that best serves the public, sometimes authors will lack enough of an incentive to create a particular work.

Indeed, I would like to rearrange the stars in the sky into new and creative constellations, but current copyright law doesn't provide me a sufficient incentive, given the cost of my project. Them's the breaks. If the law that doesn't incentivize me is better for everyone than the law that would, losing my star-works is ultimately not a great loss. It'd be nice to have them, but the price is simply too high.

Of course, I would remind you that 99.44% of the time, works have no economic value at all. And 99.44% of the time when they do have some value, you're going to see the vast majority of that value immediately upon publication. Movies make most of their profits the first weekend in theaters, the first weekend on PPV, the first weekend for rent, the first weekend they're for sale, etc.

The rare exceptions to this are not what we should build policy around. That would be like taxing everyone millions of dollars on the basis that a few people win the lottery each year.

You cited news shows. Imagine the paperwork for registering each report or show. They’d have to hire whole new divisions just to keep up with it.

One intern fills out one form once a day per show. The form is stupidly easy. Hell, filling out the form could be trivially automated. All you have to do is put some DVDRs in the envelope and send it out that year. If you're doing that much business, an account for payment is trivial, and the PTO does something similar now (and trademarks and patents are harder forms -- especially the latter by far).

Don't overstate the difficulty here. I bet that the FCC has them doing more paperwork for routine day to day crap.

I’m releasing them for free, I don’t expect compensation, but if every Tom, Dick, and porn site (not to mention being screwed by some larger entity) can use it, then that’s an anti-incentive, wouldn’t you say?

No. I would say that it is a lack of incentive. No one is actively discouraging you. Just not encouraging you as much as you want.

LOL. What a coincidence. I was right: I'm definitely not alone in my opinion of josh's "better plan for the future."

Not sure what this is, but I found it interesting.

Comments on Lessig’s post are all over the map, starting with Tom Albrecht’s equation of economic and moral issues, since he believes private property is a moral right. Rob Rickner takes a strong stance that “Authors and other creators DESERVE and have EARNED a right to control their works because of the hard work they put into them (Locke) and because the works are an expression of themselves and their personhood (Kant and Hegel).” But Rickner’s also a CC supporter. Josh Stratton says flatly, “I don’t think that authors deserve anything.” He doesn’t give a damn about creators, he just wants their creations. He’s not a big CC supporter—“I’d prefer to relax the laws instead.” I’m not sure Stratton is a full “you wrote it, it’s mine” anti-copyright advocate, but he’s close. I disagree with Stratton even more than I disagree with RIAA (if that’s possible).

It has long seemed to me the big dividing line between what I have been advocating re DRM and the objections many have to it center along the concept of moral rights. We've not had moral rights in US law, but it's not uncommon around the world. Given the personal scope of this new publishing medium, I suspect most folks, if asked in a context that reflects this personal interest, would agree some degree of moral rights in our works would be a good thing. Commons' example about his music being used in porn videos is a good example. In Josh's imaginary hell not only would CM have no control over his work (and thus, through asociation his reputation) nor would he even be paid for such slander.

Josh, your arguments are DOA because you refuse to "get" the utter fact there is no line anymore between creator and consumer. as this media evolves we will all increasingly become both consumer and creator. Automated image viewers that render choreographed full motion slideshows, music and video players that will make it easy for anyone to produce custom mixes and even their own shows... it's all well on the way. Much of it's already here, albeit it's still quite crude and the absence of DRM is limiting the scope what manufacturers will offer in the commercial marketplace.

Sacrificng copyright protections diminishes every single one of us because it inhibits our future ability to engage in commercial activities. You can argue til you drop that this was not the primary intent of copyright, and that's fine - but copyright was a response to a world where books and knowledge were incredibly expensive and even the ability to read was comparatively rare. Third world countries today do not have the illiteracy rate this nation had when our constitution was written.

A DRM society does not mean anyone gives up their rights so long as we all have equal protection under the law. That means no publishing class. It means a ubiquitous system of rights management; It means thinking of "data" as "property" - which isn't much of a shift because it already is, whether you want to accept it or not. "Data" is the new oil that lubricates our culture. Creating a world where the commoner has no rights of ownership over her own creations only ensures a secure future for the publishing elite.. and the litigious bigots that represent them.