Comments on: on building rather than suing: The Eric Eldred Act http://www.lessig.org/2003/01/on-building-rather-than-suing/ Blog, news, books Wed, 08 Feb 2017 10:59:00 +0000 hourly 1 http://wordpress.org/?v=3.8.2 By: Javier Groshaus http://www.lessig.org/2003/01/on-building-rather-than-suing/#comment-26747 Fri, 05 Sep 2008 13:07:22 +0000 http://lessig.org/blog/2003/01/on_building_rather_than_suing.html#comment-26747 Those mentioning Art. 5 (2) of the Berne Convention [1] omit mentioning the SECOND part of the sentence:

“such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work”

This is relevant because the supporters of the MIckey Mouse Law claim that they need to harmonize with EU copyright terms of author life + 70 years because otherwise, the EU would “deny this longer term to the works of any non-EU country whose laws did not secure the same extended term” [2]

Wouldn’t it be against Berne Convention for the EU to “deny” protection according to the origin of the work?
If the EU does not respect Art. 5 (2), then the USA should also not comply. Therefore, it would be beneficial to have formalities in order to avoid copyrighted orphan works (not necessarily a tax).

[1] http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P109_16834
[2] http://www.law.cornell.edu/supct/html/01-618.ZS.html

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By: Nathanael Nerode http://www.lessig.org/2003/01/on-building-rather-than-suing/#comment-26746 Tue, 20 May 2003 02:15:26 +0000 http://lessig.org/blog/2003/01/on_building_rather_than_suing.html#comment-26746 1. Karl Lenz missed the point, which is that you can’t guarantee that *after* you use the copyrighted-but-abandoned work, someone will come back and sue *then*. It’s not *safe* to make yourself sueable, even if you don’t think anyone will sue. Corporations and Non-Profit Organizations certainly wouldn’t want to put themselves in any danger.

The mere possibility of a suit has a massive chilling effect.

2. Use-it-or-lose-it is the *best* option. No copyright holder could claim that copyright was established to allow them to suppress works (the Constitution denies that), so it would be very hard to argue against.

The law should state that if a work remains generally unavailable (e.g. out of print) for (say) five consecutive years, it loses copyright protection and rises into the public domain. That is obviously not a formality. If a work was available to order on a copy-by-copy basis from the copyright holder directly via his or her website (for a reasonable amount, of course. $1000/page would be unreasonable), that should qualify as generally available.

This achieves the primary goal of restoring the thousands of abandoned, suppressed works to the public.

3. According to Rainer Brockerhoof, Spider Robinson thinks that his descendants “deserve” to profit from his works for a century. Why? Why should the children of authors get a free ride from copyright profits for their whole lives? The original life+X system in Europe was designed to cover the life of the author and the *minority* of his/her children, until they grew up — not for their whole lives. If the author saves money made during his lifetime, he still has an inheritance to give them. And most importantly, under the *US* justification for copyright, it must ‘promote the progress of science’. Do the years *beyond* life+50 really give authors a significant incentive to create more works? The economic analysis says no.

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By: Anonymous http://www.lessig.org/2003/01/on-building-rather-than-suing/#comment-26745 Fri, 24 Jan 2003 05:19:31 +0000 http://lessig.org/blog/2003/01/on_building_rather_than_suing.html#comment-26745 Is the FAQ about the Eldred Act licensed under a CreativeCommons license? Is it possible to freely copy and distribute it? If so, could the FAQ site be marked with the appropriate CreativeCommons tag? Thanks!

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By: Rainer Brockerhoff http://www.lessig.org/2003/01/on-building-rather-than-suing/#comment-26744 Thu, 23 Jan 2003 23:45:07 +0000 http://lessig.org/blog/2003/01/on_building_rather_than_suing.html#comment-26744 It seems that some of the problems with copyright lengths and extensions stem from the fact that current law assigns comparative rights and timespans to individual and corporate copyright holders. What is just for an individual creator and his family will certainly give too much power to a corporation.
Spider Robinson wrote an editorial arguing that his descendants deserve to profit from his works for nearly a century – especially in light of increasing lifespans – and I sympathize with him there. However, if he licensed his rights to (say) Disney, humanitarian considerations fall away, and the span should certainly be much shorter; or even revert to his spouse or descendants upon his death.
Shouldn’t there be some re-examination of this issue? The Eldred Act might try to introduce some differential treatment between individuals and corporations…

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By: Tim Connors http://www.lessig.org/2003/01/on-building-rather-than-suing/#comment-26743 Wed, 22 Jan 2003 13:47:41 +0000 http://lessig.org/blog/2003/01/on_building_rather_than_suing.html#comment-26743 Please add to your collection of kudos my own thanks for a noble effort, despite the outcome.

My reaction to your op-ed proposal was similar to that of Neil Sluman above. Unlike Neil, I like your proposal as far as it goes, but like Neil I would propose in addition a publication requirement — a use-it-or-lose-it provision — if such a provision could be constructed without running afoul of Berne. As John Mark Ockerbloom points out, compulsory licenses rather than loss of copyright registration might be a good work-around. My premise is that the next best thing to having works in the public domain is to have them readily available in the marketplace. Accordingly, some of these notions resemble your Commons mechanism, but applied outside the context of the public domain.

Suppose that after some point in the life of a copyright, say 50 years (say 10 if you think we could persuade Congress!), the owner is required not to let publication lapse for more than some reasonable amount of time — say five years. If the owner prefers not to fund the publication, it deposits the work with a repository that posts the material on the net and charges a compulsory license for access.

The repository, which could be part of the Copyright Office, or a private entity licensed by the government, takes a cut to fund itself (and maybe the board that sets the compulsory licenses) and remits the difference to the copyright owner. The owner gets to control presentation, attribution and notice. Those who would like to commercially exploit a work in the repository could always contact the owner through the repository. The owner can have the work removed from repository by conventional publication elsewhere. Thus, an owner would be incented to put its work in the marketplace even if its worth is perceived as low.

If the owner fails to post to the repository within five years of last publication after the 50 (or 10!) year point, anyone may freely post the work to the repository. Users would still pay the compulsory license, which would sit in a fund until claimed by the owner. (Interest on that fund could also help fund the endeavor.) Owner can only claim its license fee by posting to the repository, or publishing, and providing notice.

Once the copyright on a work expires, the work could be routed directly to your commons or something like it, to help promote a vibrant public domain. (Links could also be added to promote a dedication to the public domain before the expiry of the copyright term.)

For the owner that exploits its work diligently, nothing changes. For the derelict owner, an eminently fair bargain. For the public, many more works available in the marketplace, and some marginal improvement of the public domain as well.

This proposal would help restore the bargain in the copyright clause without actually reducing the term of copyright. It would recognize that publication is a comparatively trivial burden now (unlike in 1789), and a small one to exact in exchange for the government-granted monopoly of a copyright — the justification for which has always been to make more works available to the public. Finally, it would be difficult for an opponent to justify its opposition, when all it has to do to avoid this system is exploit its copyright diligently.

Sorry for the length, but I’ve been giving this a lot of thought since the decision. Thanks for providing this forum and thanks again for your hard work and that of the rest of your team.

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By: jam http://www.lessig.org/2003/01/on-building-rather-than-suing/#comment-26742 Tue, 21 Jan 2003 22:50:29 +0000 http://lessig.org/blog/2003/01/on_building_rather_than_suing.html#comment-26742 Why start at the 50 year point?

We tax real property now. In Virginia (and other states, too, I think) personal property is taxed. We tax at least realized capital gains on investment property. Why not tax intellectual property-all intellectual property? With escheat to the Government (thence to the public domain) on non-payment, as with real property taxes.

Ad valorem of course. Which probably amounts to a near exemption for self-publication.

Patents, too.

There might be some problem valuing IP, but there are equivalent problems valuing land in low-demand locations, which doesn’t derail real property taxation.

I don’t think this violates Berne. This isn’t an obstacle to acquiring copyright. You still acquire copyright by default. You would simply have to declare what copyrights you’ve acquired in a tax return, and pay taxes on them. That European Union countries impose income taxes is not regarded as infringing on their treaty obligations to permit free mobility of labor between them.

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By: Paul Fernhout http://www.lessig.org/2003/01/on-building-rather-than-suing/#comment-26741 Tue, 21 Jan 2003 16:49:30 +0000 http://lessig.org/blog/2003/01/on_building_rather_than_suing.html#comment-26741 Jim Penny-

I like your bigger tax proposal.

I have made a similar one here in the “doc’s diagnoses” blog entry comments: http://cyberlaw.stanford.edu/mt/mt-comments.cgi?entry_id=889
and elsewhere but with the option that anyone at any time may pay the self-assessed value to the rights holder and the work is immediately put into the public domain. Then essentially the value being self-assessed is the worth to the rights holder of the work being kept out of the public domain. The rights holder would then pay a 3% or so tax annually on this self assessed amount (for each country using this process — a nice revenue stream for developing countries, who otherwise mainly just lose out from enforcing broad copyrights).

It’s important to recognize the new justification for taxing copyrights now that the Supreme Court have effectively said they can be perpetual. Perpetual copyrights break the historic copyright bargain that the public is paid for the external costs of the copyright monopoly by having the work in a short time enter the Public Domain. These external costs include courts, police, prisons for those who share, the information superhighway, researching rights holders, negotiations, chilling effect, deprival, etc. I feel the period for non-payment of taxes should be one year or less before the work enters the public domain.

Note that an implicit issue is distinguishing between economic rights to benefit from distribution and “moral rights” such as in European copyright law regarding creative control of works. Without explicit moral rights, in the U.S. it seems authors expect the economic control of their work to be what gives them moral leverage. It might be worth distinguishing these — that is, authors might retain some moral rights over original works whether in the PD or not (such as rights of attribution).

I think that a much more agressive tax on copyright might have a better chance of passing than a small one because it might bring in real revenue to balance th U.S. budget. Also, it may be more succesful to get such an approach passed first in a country that has not subscribed to the Berne convention, or alternatively to have all Berne convention signers agree to implement it together.

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By: Curtis http://www.lessig.org/2003/01/on-building-rather-than-suing/#comment-26740 Tue, 21 Jan 2003 15:08:39 +0000 http://lessig.org/blog/2003/01/on_building_rather_than_suing.html#comment-26740 The only problem I have with this is the potential for perpetual copyrights. There should be a limit to the number of times you can re-register–say, 25 so you have 50 years free, and then 25 years for a buck apiece. After the 25 pay years, your work is PD automatically.

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By: Jim Penny http://www.lessig.org/2003/01/on-building-rather-than-suing/#comment-26739 Mon, 20 Jan 2003 20:56:16 +0000 http://lessig.org/blog/2003/01/on_building_rather_than_suing.html#comment-26739 Look, it is indisputable that property can be taxed, right?

So, if the believers in “intellectual property” are to be consistent, it is certainly
reasonable that “intellectual property” be taxed, just as physical property is.

The only hard part is valuating the “property”.

So, why not allow the owner of the “property” to self-declare its worth, with the
following provisos. 1) Compulsory sale — if anyone offers 200% of the registered
value, the property is put up for auction, and the highest bidder receives it. High bidder
cannot reduce the properties valuation for 5 years. Original owner receives the full
200% value. 2) non-payment of taxes — if taxes remain unpaid for some number of
years, say five, the property reverts to the public domain. 3) a copyright holder can
avoid paying taxes at anytime, by valuing the “property” at zero. He continues to own
the copyright, but may not collect anything beyond treble damages.

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By: Kevin Marks http://www.lessig.org/2003/01/on-building-rather-than-suing/#comment-26738 Mon, 20 Jan 2003 17:35:46 +0000 http://lessig.org/blog/2003/01/on_building_rather_than_suing.html#comment-26738 On precedent noted on the pho list was that of rights reversion. You could recast this such that ‘out of print’ unavailable works would revert to the original author from the publisher after 5 years of unavailability, and to the public domain after a further five years.
Defintions of availability are tricky here, obviously, but with the growing feasibility of publication on demand, this could achieve one of the ends by a differnt menas.

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By: Earl Mardle http://www.lessig.org/2003/01/on-building-rather-than-suing/#comment-26737 Mon, 20 Jan 2003 01:05:50 +0000 http://lessig.org/blog/2003/01/on_building_rather_than_suing.html#comment-26737 looks like the html link isn’t working, here’s the URL http://www.livejournal.com/talkread.bml?journal=rlmrdl&itemid=18913#cutid2

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By: Earl Mardle http://www.lessig.org/2003/01/on-building-rather-than-suing/#comment-26736 Mon, 20 Jan 2003 01:04:39 +0000 http://lessig.org/blog/2003/01/on_building_rather_than_suing.html#comment-26736 There has been much wailing and gnashing of teeth on the outcome of this legal challenge to the extension of copyright by the US Congress. Of course Eldred should have taken the case and of course Lessig should have prosecuted it and of course we should be aghast at their failure, but we should also stand back and consider what this is about. I have tried to do that and started an essay called Eldred v Ashcroft � Corporate America Pulls Its Memes Out of the Pool and dealing with the Fork in the Cultural Code

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By: J.B. Nicholson-Owens http://www.lessig.org/2003/01/on-building-rather-than-suing/#comment-26735 Mon, 20 Jan 2003 00:59:37 +0000 http://lessig.org/blog/2003/01/on_building_rather_than_suing.html#comment-26735 I am curious to know what would be the amount of time a corporation would be able to have uninterrupted copyright power over its works before the tax kicked in. Berne’s minimum term sounds like something that would definately cause a problem for this tax to start at 50 years after first publication (I don’t completely understand the legalese behind “formality” or “tax” but it sounds to my lay ears like the Eric Eldred Act would be a formality). Assuming it is a problem that causes some revision of the time before the tax begins, it doesn’t make sense to talk about corporate copyright powers in terms of “life of the author”.

I’d like to respond to a couple responses I’ve seen so far:

Lenz writes: “Calling your formality a tax while it is in fact a registration…” I don’t think this is a registration. Typically one registers something to begin a process, not to continue it. In this scheme I don’t have to register with anyone to gain copyright powers, I have to do something special to maintain them after 50 years. But this might be a small point of language more than anything. Lenz also writes “The other point is that you don�t need this law for works without commercial value.” and I don’t think that’s right. As I understand copyright law copyright powers are independant of (though often related to) commercial value. It is entirely possible to write a book, say, to which you hold copyright but which has no commercial value.

One thing that isn’t clear in the description I’ve read so far: is this tax a one-time fee or an ongoing (say, annual?) fee? I don’t think it matters at all for the Berne convention problem (if one payment is allowed, I don’t see anything in Berne that would prevent multiple periodic payments to retain copyright powers). But at first glance of the FAQ I thought this was a periodic payment and then I re-read the description in the FAQ and noticed it didn’t say explicitly that the tax repeats. If we are to really continue calling this a tax that could be worth clearing up since some taxes repeat and some don’t.

Finally, I am troubled by the comparisons to property in the FAQ (see the answer to question 10). What I have learned about copyright from various places suggests it is a bad mistake to think of copyright as property instead of policy (to paraphrase Siva Vaidhyanathan). Maybe the Supreme Court decision changes things in some way I’m unaware of but I was under the impression it’s a mistake to argue for a shorter term of copyright by talking about property (which people generally think they own forever and should control even after they are dead).

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By: Troutgirl http://www.lessig.org/2003/01/on-building-rather-than-suing/#comment-26734 Sun, 19 Jan 2003 20:56:59 +0000 http://lessig.org/blog/2003/01/on_building_rather_than_suing.html#comment-26734 I admire your positive attitude, but as a Machiavellian matter wouldn’t it be better to let the people suffer as much as possible for some period of time? I was gobsmacked how little notice was given to the harm caused by copyright extension in the majority opinion; Breyer’s arguments about the harm to education and cultural preservation apparently hit no nerves in his colleagues. Justice Ginsburg’s blithe comment about the “traditional contours” of First Amendment protection in current copyright law also made me gasp at the apparent out-of-itness of the Court. I just wonder if 20 years with no additions to public domain, and the steady reduction of fair use — 20 more years of having your CDs not play in your computer, having Ebay cancel your auctions, having your child receive a cease and desist for using someone’s photo in an award-winning science-fair project, etc. — isn’t the only thing that will get the American people into the right mindset for the showdown which is sure to come in 2018.

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By: Neil Sluman http://www.lessig.org/2003/01/on-building-rather-than-suing/#comment-26733 Sun, 19 Jan 2003 17:56:33 +0000 http://lessig.org/blog/2003/01/on_building_rather_than_suing.html#comment-26733 I think the basic principle is a good idea, but I really feel that a tax is the wrong way to go. It would not substantially increase availability of works, since – As Tim Hare mentioned – the big publishers would simply renew all copyrights in one go.

Perhaps instead, the publisher should be obliged to publish. Simply by making copies available to the public, the author can extend the copyright by a number of years, up to a specified maximum. This would result in less popular works entering the public domain before they are forgotten completely, while those that were kept out, would at least be kept availble for those that wish to have access.

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By: doogieh http://www.lessig.org/2003/01/on-building-rather-than-suing/#comment-26732 Sun, 19 Jan 2003 17:26:58 +0000 http://lessig.org/blog/2003/01/on_building_rather_than_suing.html#comment-26732 Of course, a simple change of one word turns this from the Eric Eldred Act to the Jack Valenti Act.

Instead of a fifty year renewal at the end of the fifty year term, just make it a fifty year renewal at the end of each fifty year term. That way, at no time is the copyright ever unlimited in time, but copyrights of corporations (the only ones finicky enough to comply after fifty years to keep their rights going) would never expire and they would no longer have to shovel millions of dollars to congress every generation or so!

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By: Carl Beeth http://www.lessig.org/2003/01/on-building-rather-than-suing/#comment-26731 Sun, 19 Jan 2003 14:19:49 +0000 http://lessig.org/blog/2003/01/on_building_rather_than_suing.html#comment-26731 Am I the only one that thinks this is a horrible idea! The initial problem is that copyright is being extended into perpetuity. Copyright law is there to encourage creativity in a way that benefits society.

To take example on patent law imagine for a minute that it was also 90 years and growing don’t you think the IBMs and Bayers of the world would file blanket extensions for all the patents they hold. We the end user would have to pay enormous sums for our drugs and gadgets many would not be made because the it would almost be impossible to make things that did not infringe on some patent somewhere. The patent holders would have very little incentive to invest in new research as they could milk their old ideas into perpetuity. I think this has already started in the copyright space, Disney is a prime example of a company mainly recycling their old ideas (and ironically public domain works).

The problem with current copyright law is that it no longer encourages creativity. In the patent space companies know full well that they need to reinvest their profits into new ideas because the old ones will expire. Where is the equivalent motivation in the copyright space. How does society benefit from perpetual copyright even under a renewal process?

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By: ry rivard http://www.lessig.org/2003/01/on-building-rather-than-suing/#comment-26730 Sun, 19 Jan 2003 13:44:55 +0000 http://lessig.org/blog/2003/01/on_building_rather_than_suing.html#comment-26730 It’s a decent idea, but I don’t understand why you’ve done this?

Professor Lessig, I have great respect for your work and as someone in the upcoming generation I understand how my creativity will be limited by the current system, but doesn’t the Eric Eldred Act just provided a conviniant way out for Congress to pretend solve the problem?

For one thing this turns all of the momentum around and moves it in the wrong direction. Originally it was: get all these works in the public domain! Free Mickey!

Now’s it the almost banal, “Get 98% of the works freed!”

It seems to me that freedom of expression and freedom of choice are not only essential to the human endevor but are moral absolutes for mind of a species that craves creation.

The Eric Eldred Act turns it back on that and lets Congress and corporate America get away from their responsibilities as creators to recontribute, and keeps the wool pulled down over the minds of the intrepid creators of mine and every generation.

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By: Alan-a-Dale http://www.lessig.org/2003/01/on-building-rather-than-suing/#comment-26729 Sun, 19 Jan 2003 11:10:58 +0000 http://lessig.org/blog/2003/01/on_building_rather_than_suing.html#comment-26729 (part eight of eight; the rest can be found elsewhere)

The public good’s bad, our rights now all wrongs
And Justice sings the big companies’ songs.
But we don’t like the tune, want to do as we please
As we write and we think and we make MP3s.
The time has come to kill Justice’s vulture
And finally to set free our own culture.
Stand up and be counted, put our rights on the map
And together we’ll build us a working mousetrap.

(ends)

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By: James Day http://www.lessig.org/2003/01/on-building-rather-than-suing/#comment-26728 Sun, 19 Jan 2003 09:03:41 +0000 http://lessig.org/blog/2003/01/on_building_rather_than_suing.html#comment-26728 The proposal should prohibit paying the fee except within a year or five of expiration of copyright. If it doesn’t, it is likely to become habitual to pay the fee at the time of original publication of the work and that would cause it to serve no useful purpose. It may even be necesary to prohibit contracts entered into prior to that time limit which require a third party to make the payment on time.

May I and anyone else who chooses to do so reproduce your NY Times Op-Ed piece or the proposal it contains? While I can make the necessary fair use arguments to do so, not all parties are able to comprehend those arguments well enough to understand them and not all people are sufficiently familiar with copyright law to know that those arguments are valid. In at least one place I’m contractually required to enforce copyright law and made liable for all legal costs and decisions if I make a mistake and the NY Times sues. I can do without the risk. If the answer is no, please supply a version which can be feely distributed, preferably one placed in the public domain.

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By: Karl-Friedrich Lenz http://www.lessig.org/2003/01/on-building-rather-than-suing/#comment-26727 Sun, 19 Jan 2003 03:12:46 +0000 http://lessig.org/blog/2003/01/on_building_rather_than_suing.html#comment-26727 As has been pointed out above, your proposal would be a “formality” under Art. 5 (2) of the Berne Convention, which reads:

” The enjoyment and the exercise of these rights shall not be subject to any formality; “

Calling your formality a tax while it is in fact a registration is not enough to work around that Article. At the least, Number 7 in your FAQ would seem to need to address this issue in more detail.

The other point is that you don’t need this law for works without commercial value. If the commercial value is zero anyway, anybody can just go ahead and use the work right now. There will be no one to sue. So if you get your law passed you get only what you already have.

The easier and faster strategy would seem to be to set up servers in a free country (for example Japan) with a protection term of 50 years after death of author.

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By: Kevin Marks http://www.lessig.org/2003/01/on-building-rather-than-suing/#comment-26726 Sat, 18 Jan 2003 23:30:33 +0000 http://lessig.org/blog/2003/01/on_building_rather_than_suing.html#comment-26726 This is neat – less punitive than my original doubling idea, and thus more likely to pass.

Howver, I still think the idea of making derivative works easier by a digital extension of the doctrine of first sale has potential.

The idea is that you can make a derivative work of any existing work, provided that your customers have bought a copy of the source work. The legal precedents here are not completely clear, and the pending cases about bowdlerised movies on sale in Utah may help resolve it. It could certainly begin on a voluntary basis.

My mediAgora proposal has more details on how this could be effected.

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By: Timothy Phillips http://www.lessig.org/2003/01/on-building-rather-than-suing/#comment-26725 Sat, 18 Jan 2003 23:21:28 +0000 http://lessig.org/blog/2003/01/on_building_rather_than_suing.html#comment-26725 This is, as has been noted, a proposal to revive copyright renewal. For this reason, it should be part of the copyright code, not part of the internal revenue code.

A registered copyright would be easy to renew; just send a check with the number of the copyright certificate in the “memo” line. Copyrights that were never registered would be tricky. If I write a hundred songs and never register their copyrights, then lump them all together at renewal time as a “song book”, then no one will be able to determine the copyright status of any individual song without a copy of my “song book” (which may not even exist in bound copies, unless the renewal process includes a deposit requirement).

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By: humina http://www.lessig.org/2003/01/on-building-rather-than-suing/#comment-26724 Sat, 18 Jan 2003 21:49:58 +0000 http://lessig.org/blog/2003/01/on_building_rather_than_suing.html#comment-26724 I’m torn here. I hate everything about the Disney corporation (not least, Mickey Mouse). Doesn’t putting Mickey Mouse into the public domain (assuming we could get there) just encourage people to use the Mouse and therefore spread the evil which is the Mouse? Or would the (apparent) proper result here — a limitation on terms — allow us to have more subversive stuff like the Disney equivalent of the “Dysfunctional Family Circus”?

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By: Anonymous http://www.lessig.org/2003/01/on-building-rather-than-suing/#comment-26723 Sat, 18 Jan 2003 18:02:57 +0000 http://lessig.org/blog/2003/01/on_building_rather_than_suing.html#comment-26723 Rather than a tax, how about free “renewal filing”, that’s to basically acknowledge that “hey, this work is being maintained by me”

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