Comments on: to promote … progress http://www.lessig.org/2004/06/to-promote-progress/ Blog, news, books Thu, 02 Feb 2017 18:43:00 +0000 hourly 1 http://wordpress.org/?v=3.8.2 By: A Will http://www.lessig.org/2004/06/to-promote-progress/#comment-4893 Thu, 05 Aug 2004 05:48:10 +0000 http://lessig.org/blog/2004/06/to_promote_progress.html#comment-4893 If copyrights lasted a reasonable time then it would not be difficult to find who owned them. It is only the recent unreasonable extensions of the term of copyright that has put so many works into publishing limbo. As an author myself I would hate to have to register each work (of course if everything I wrote was worth as much as a car or a house I wouldn’t mind so much.)

But I would have no problem changing the law so that a copyright lasted 50 years from first publishing date instead of 100 to 150 years.

I think that would take care of most issues.

As far as the publisher who won’t prove they have the rights…

If you send them a certified letter stating that you believe the rights to this book belong to ________ and that you intend to republish the book unless they offer proof that they hold the rights. If they have proof they will provide it. If not even if they do sue you, you would be on stronger ground having given them fair notice.

Just one more way to approach the situation.

A Will

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By: jerry lobdill http://www.lessig.org/2004/06/to-promote-progress/#comment-4892 Thu, 17 Jun 2004 01:01:27 +0000 http://lessig.org/blog/2004/06/to_promote_progress.html#comment-4892 Well, I think that not every utterance on a blog rises to a level that is worth copyrighting in the first place, far from it. And as far as software is concerned, I have a difficult time seeing how much of that is something that any competent programmer couldn’t do as well as any other, and so it wouldn’t be patentable if it were covered there rather than under copyright, so IMHO it probably shouldn’t be covered under copyright either.

The idea that it should be assumed that every utterance should be covered under copyright unless explicitly dedicated to the public domain makes no sense to me.

No matter how you cut it, permitting copyright without a “deed” or “title” that is traceable in a central registry makes no sense at all IMO.

Today’s beneficiaries of copyright law are looking only to their own desires, and they don’t give a damn what makes sense.

I’m sure some will think I’m a heretic, but the public domain is important; it needs nurturing, and it’s high time the law was changed to inject a modicum of sanity. (Just my $0.02)

Everything in this post is public domain and I resent having to say so.

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By: Joseph Pietro Riolo http://www.lessig.org/2004/06/to-promote-progress/#comment-4891 Wed, 16 Jun 2004 21:53:12 +0000 http://lessig.org/blog/2004/06/to_promote_progress.html#comment-4891 Responding to the previous comment:

Here are several examples of how much burden it will be
on authors and artists:

1) Writers of blogs will have to register their entries
with the Copyright Office every week, month, or quarter.

2) People who make comments in their entries will have
to register their comments with the Copyright Office.

3) Programmers who contribute their code to open source
programs will have to register their code with the
Copyright Office every time they make contributions
no matter how small they are.

4) Photographers who make 100 pictures a day will have to
register them with the Copyright Office every day.

5) Authors who write weekly columns will have to register
them with the Copyright Office every week, month, or
quarter.

6) Kids who write cute stories and songs will have to
register these works with the Copyright Office.

7) Students who produce creative works as the result
of homeworks and projects in schools and colleges
will have to register these works with the Copyright
Office.

And so on.

I think that that these examples illustrate the detestation
that the authors and artists have for the copyright
registration, in spite of some positive benefits in
having clear title and registry of titles. What about
the great burden that the users will bear in locating
the true copyright owners in the future? They simply
don’t care.

Joseph Pietro Riolo
<riolo@voicenet.com>

Public domain notice: I put all of my expressions
in this comment in the public domain.

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By: Anonymous http://www.lessig.org/2004/06/to-promote-progress/#comment-4890 Mon, 14 Jun 2004 14:20:24 +0000 http://lessig.org/blog/2004/06/to_promote_progress.html#comment-4890 Joseph, you write:

“I agree with your suggestion on the solution to the
problem (central registry of copyright ownership).
However, the chance that it will be adopted by authors
and artists is very small. One of the reasons why
the formal requirement of copyright registration is
eliminated is to lighten the burden on the authors and
artists. While it is a big benefit to them, it is a
disaster to the users including yourself.”

I really fail to see how it actually lightens the burden on authors and artists. Would it lighten the burden on real property owners if there was no registry of titles? I don’t think so. It would make title insurance impossible. If you can’t show clear title you have a hard time selling or financing a sale. I would think that proponents of any version of copyright law would be very much in favor of a central registry.

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By: Joseph Pietro Riolo http://www.lessig.org/2004/06/to-promote-progress/#comment-4889 Mon, 14 Jun 2004 09:08:08 +0000 http://lessig.org/blog/2004/06/to_promote_progress.html#comment-4889 To Todd,

Thanks for sharing the information with us. I
have heard that very few people took that approach
but they are not completely out of the woods due to
technical copyright infringement.

To Jerry,

The approach that Todd explained is one good example
of how one can evaluate the risk of being sued for
copyright infringement. Lawyers tend to have various
legal theories but I usually don’t trust them until
they are backed by court cases. There is no mercy
and grace in the copyright law. They are found only
in the copyright owner. If a true copyright owner pops
up and he or she is extremely nice and is very
understanding, you are safe. Otherwise, you will find
yourself in water filled with sharks.

I agree with your suggestion on the solution to the
problem (central registry of copyright ownership).
However, the chance that it will be adopted by authors
and artists is very small. One of the reasons why
the formal requirement of copyright registration is
eliminated is to lighten the burden on the authors and
artists. While it is a big benefit to them, it is a
disaster to the users including yourself.

So that you will know, I am not a lawyer in any sense.

Good luck with whatever decision you will make.

Joseph Pietro Riolo
<riolo@voicenet.com>

Public domain notice: I put all of my expressions
in this comment in the public domain.

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By: Todd Jonz http://www.lessig.org/2004/06/to-promote-progress/#comment-4888 Sun, 13 Jun 2004 15:15:41 +0000 http://lessig.org/blog/2004/06/to_promote_progress.html#comment-4888 Jerry writes:

> If a valid rights holder appears, could she not demand
> all revenues whether profits or simply gross income?

My understanding is that he has put all revenue in the escrow account so that he would not have to tap his own resorces to cover the difference between gross and net in the worst case. His hope, however, would be that a reasonable rights holder would accept just the net proceeds based on his sales and expense records.

> Might she also not demand additional damages
> and drag the infringer into court

The attorney who advised him seemed to think that offering to turn over the total gross proceeds would likely keep him out of court. To win any additional award would require the rights holder to demonstrate further damages, e.g. loss of revenue due to the competition, which would be difficult to argue in the case of an out-of-print work. The fact that there is relatively little demand for the works in question (compared to the volume a “real” music publisher would desire) would probably work to his advantage as well.

(I should probably mention here that my knowledge of this situation is purely anecdotal and comes from a year-old exchange on an Internet mailing list.)

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By: jerry lobdill http://www.lessig.org/2004/06/to-promote-progress/#comment-4887 Sun, 13 Jun 2004 13:27:13 +0000 http://lessig.org/blog/2004/06/to_promote_progress.html#comment-4887 Hi Todd,

I wonder if this approach is not also fraught with risk. If a valid rights holder appears, could she not demand all revenues whether profits or simply gross income? This could be quite expensive.

Might she also not demand additional damages and drag the infringer into court, causing him to expend big bucks on a legal defense?

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By: Todd Jonz http://www.lessig.org/2004/06/to-promote-progress/#comment-4886 Sat, 12 Jun 2004 18:33:13 +0000 http://lessig.org/blog/2004/06/to_promote_progress.html#comment-4886 Joseph writes:

> Canada�s copyright law, I believe, has a provision where you
> can print book if you can�t find copyright holder with reasonable
> effort. I think that it requires you to put profit in escrow.

I know of one person who has taken this approach here in the U.S. to address a very similar problem.

Composer/arranger Tommy Pederson was already a successful and well-known arranger of big band music when he decided to undertake formal study of composition in the ’50s. During that time he wrote seven truly unique concerti for trombone ensemble which are still of great interest to the trombone-playing community today. Alas, only a couple of these works are still in print, and the rest are in a copyright limbo of the same type that Jerry has described.

An L.A. studio musician who had performed on the original recordings of some of these pieces happened to have had the original charts (sheet music) in his possession after the deaths of both Pederson and his wife. He made a serious but unsuccessful effort to identify the rights holders. Unwilling to permit these works to pass into oblivion, he decided to take a risk and publish them himself.

On the advice of an IP attorney, he has maintained detailed expense records and placed all revenues generated into an escrow account. If a valid rights holder should suddenly materialize he will offer to turn over the profits and cease publication. Until then, however, the admittedly small community of folks interested in this material still has access to it.

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By: jerry lobdill http://www.lessig.org/2004/06/to-promote-progress/#comment-4885 Sat, 12 Jun 2004 13:42:41 +0000 http://lessig.org/blog/2004/06/to_promote_progress.html#comment-4885 Hi Joseph,

I take your points about the survival of copyright, the risk that an unknown owner could pop up at any time, and the seriousness of the decision to dedicate my remarks here to the public domain.

The author’s will as probated proves nothing about the ownership of copyrights he may have at one time possessed, as I understand it. He may or may not have transferred ownership. And under current law a seemingly bona fide unknown owner could pop up at any time within the copyright term. Further, that unknown owner’s claim might be contested by another claimant who holds yet another document that purports to transfer ownership. Additionally, while a state law may exist which places copyrights for which there is no known claimant in the hands of the state, the very existence of such unclaimed copyrights is unknowable under present law. At least that’s how it seems to me.

The solution to all these problems would seem to me to be a legal requirement for a central searchable registry of copyright ownership where all copyrights and transfers of copyright ownership must be recorded.

Not being a copyright lawyer, I’m not certain I’m right and would be grateful to be corrected if I’m wrong.

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By: Joseph Pietro Riolo http://www.lessig.org/2004/06/to-promote-progress/#comment-4884 Sat, 12 Jun 2004 12:47:31 +0000 http://lessig.org/blog/2004/06/to_promote_progress.html#comment-4884 Hi Jerry,

I have some lingering doubt about living heirs but
I will take your words and assume that the copyright
goes to state.

It seems to me that of all property rights (both
intellectual and non-intellectual), copyright is the
most indestructible one. No matter how much it is
neglected, no matter how much it is abandoned,
copyright simply does not disappear. Only time
can destroy it (that is, when copyright term ends)
or a very overt, affirmative dedication to the
public domain can obliterate the rights in the
copyright.

It does not matter if will is silent on copyright.
I believe that copyright belongs to the category of
personal property. If will does not say anything
about copyright (or any other property), it is handled
according to state law. For my state and assuming
that there is no living heir, Commonwealth of
Pennsylvania could own the copyright even though
there is no action from the state on assuming the
ownership.

In this area where uncertainty abounds, people usually
evaluate the risk of being caught with copyright
infringement. People infringe copyrights daily but
copyright holders do not rebuke or sue them because
their copyright infringement never appear on the
holders’ radar. But, as what Steve said, the true
copyright holder could pop up at any time.

I am very sure that there must be some cases out there
that are similar to your case but I don’t know any of
them. You may want to make an inquiry about the cases
at the mailing list CNI-COPYRIGHT. See
http://www.cni.org/forums/cni-copyright/cni-copyright.html
for information on joining the list.

Dedicating your work (such as comment) to the public
domain is a very personal decision and should not be
made very lightly but is sorely needed in this age where
the percentage of knowledge still remain under copyright
continues to dwarf the percentage of knowledge that is
in the public domain. If you do this with the full
knowledge that your comment may be a moneymaker for
others, so be it. Otherwise, retain your copyright.

Joseph Pietro Riolo
<riolo@voicenet.com>

Public domain notice: I put all of my expressions
in this comment in the public domain.

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By: jerry lobdill http://www.lessig.org/2004/06/to-promote-progress/#comment-4883 Thu, 10 Jun 2004 23:16:12 +0000 http://lessig.org/blog/2004/06/to_promote_progress.html#comment-4883 Joseph,
I understand your concern. However there are two things that make it rather unlikely to be a problem in this case. The first is that the author’s will does not allude to the possession of any copyright, nor does his wife’s will (who died more than a decade later). What evidence would lead any court or any potential heir of the surviving wife to seek possession of a property for which no “title” has surfaced and the author has not declared in the will? Wouldn’t it be necessary to have proof of ownership by the author at death? And wouldn’t present law presume that if such proof were not produced with the will that ownership could not be assumed? The second thing is that the author was an octogenarian when he died and neither he nor his wife had surviving siblings.

If, in fact, he never transferred ownership of the copyrights of his books it is most likely that no one would come forward to contend infringement if I were to publish…except for the publisher who refuses to prove ownership.

I hereby put all of my comments on this blog in the public domain. (I’d prefer not to have to make such a declaration…as if my comments had commercial value :-))

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By: Joseph Pietro Riolo http://www.lessig.org/2004/06/to-promote-progress/#comment-4882 Thu, 10 Jun 2004 22:25:32 +0000 http://lessig.org/blog/2004/06/to_promote_progress.html#comment-4882 To Jerry,

Insane is just one word in the very long list
of vocabulary to describe the U.S. copyright law.
We had a wonderful system of copyright registration
where everyone must register his work to gain
copyright. Alas, it is gone. The copyright in
your comments that are posted to blog will last for
70 or more years. What is the chance that anyone
who finds your comments very interesting will be
able to locate your heirs?

Back to the problem at hand…

I doubt that there is no living heir left to receive
the copyrights and other properties.

Out of my curiosity, I googled for state law for my
home state Pennsylvania and found this web page:
http://members.aol.com/DKM1/20.Cp.21.html
The first to receive entire estate is the offspring
of wife or husband, then their parents, then
offspring of their parents, then grandparents, then
offspring of grandparents, and finally to the
Commonwealth of Pennsylvania. We are talking about
cousins! There is a good chance that the author or
his wife has some distant cousins somewhere in the
U.S.

You have different options to address the problem.
Several options were already mentioned (use pro bono
service, do very long research to find copyright
holder, give your book to library where it can
reproduce it for other libraries, wait for copyright
to expire). I would add one more option: Write a
letter to your Congress people and complain about the
problem. Canada’s copyright law, I believe, has a
provision where you can print book if you can’t find
copyright holder with reasonable effort. I think that
it requires you to put profit in escrow.

Joseph Pietro Riolo
<riolo@voicenet.com>

Public domain notice: I put all of my expressions
in this comment in the public domain.

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By: Steve http://www.lessig.org/2004/06/to-promote-progress/#comment-4881 Thu, 10 Jun 2004 17:00:34 +0000 http://lessig.org/blog/2004/06/to_promote_progress.html#comment-4881 Jerry -
You are exactly right about the problem. And there is no easy solution. The most perilous risk is that the ultimate owner of the copyright could pop up at any time, if you were to try to publish. My suggestion about a brief declaratory judgment suit against the previous publisher is aimed only at eliminating the most visible risk — if it turns out, as you suspect, that the publisher does not have any evidence of ownership of the copyright. Again, it seems like a good clinical project for a Stanford Law School (or Boalt) class and professor on a pro bono basis, if you can interest them. If you like, I could also find out if a USF copyright class might be interested. If so, email me.

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By: jerry lobdill http://www.lessig.org/2004/06/to-promote-progress/#comment-4880 Wed, 09 Jun 2004 22:18:08 +0000 http://lessig.org/blog/2004/06/to_promote_progress.html#comment-4880 More on the notion that ownership might revert to the state.

Suppose an author dies leaving the simplest of wills, bequeathing all his property whether real, personal or mixed to his wife (no specific identities of property). There were no children either. Then his wife dies years later leaving a simple will in which all her possessions are enumerated, but no copyrights are mentioned in the “all property whether real, personal or mixed” clause.

There is no hint of what happened to all the copyright “titles”, “deeds” or whatever we should call them.

Suppose, in fact, those copyrights were never transferred and the ownership papers are mouldering somewhere in a box. The state doesn’t know about them and neither does anyone else. But suppose the author’s publisher claims ownership but will not produce the “title”.

With the law as it now stands there is no way to sort this all out, and the law effectively favors the claimant with the deepest pockets.

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By: Jerry Lobdill http://www.lessig.org/2004/06/to-promote-progress/#comment-4879 Wed, 09 Jun 2004 21:59:42 +0000 http://lessig.org/blog/2004/06/to_promote_progress.html#comment-4879 It makes no sense at all to me that intellectual “property” that falls under copyright law has no central registry of ownership but patents, trademarks, vehicles, and real estate do. Copyright law makes every copyright search a potentially impossible task. If you don’t find the owner, it doesn’t mean you won’t be sued if you use the material. This is an insane law.

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By: Joseph Pietro Riolo http://www.lessig.org/2004/06/to-promote-progress/#comment-4878 Wed, 09 Jun 2004 21:22:07 +0000 http://lessig.org/blog/2004/06/to_promote_progress.html#comment-4878 To Jerry Lobdill,

Yes, it is possible that the copyright in works
could be transferred to a library, museum, or
even other entity. This is the reason why I
suggest you to look up the state law on
distributing intangible properties if will
says nothing about them. Generally, state laws
have very long list of relatives in the order
that they should receive the properties. In
very unlikely case that there is no relative
left to receive the properties, judge may
have the liberty to decide where they should
go to, if allowed by state law. Any unclaimed
properties are up for sale, if required by
state law. In case they are not up for sale,
state, by default, may hold the properties,
waiting for someone else to acquire.

I have no specific knowledge on how the
distribution of properties, both tangible and
intangible, works. I only have vague, general
idea of how it works.

It seems that you have to do a very long
research to find exactly where the ownership
of copyright goes.

Tim’s suggestion to publish the book without
finding out who owns copyright is a risky
business and I would recommend not to take
it.

Steve’s suggestion on using pro bono sounds
very good to me, only if there is no case
similar to your situation that has been
addressed by state or federal court.

Joseph Pietro Riolo
<riolo@voicenet.com>

Public domain notice: I put all of my expressions
in this comment in the public domain.

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By: Tim http://www.lessig.org/2004/06/to-promote-progress/#comment-4877 Wed, 09 Jun 2004 19:35:25 +0000 http://lessig.org/blog/2004/06/to_promote_progress.html#comment-4877 What I’m curious about was the phrase “too small a publisher to qualify” – where is the line drawn? Do they mean you’re too small for them to bother proving their ownership to?

My suggestion: publish it. To prove they own the copyright, they will have to produce said proof in court. They’ll only do that if it is worth enough money to them, therefore if you become a large enough publisher to qualify :-).

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By: Steve http://www.lessig.org/2004/06/to-promote-progress/#comment-4876 Wed, 09 Jun 2004 16:27:32 +0000 http://lessig.org/blog/2004/06/to_promote_progress.html#comment-4876 It might be a good pro bono project for Stanford Law School.

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By: Jerry Lobdill http://www.lessig.org/2004/06/to-promote-progress/#comment-4875 Tue, 08 Jun 2004 19:00:32 +0000 http://lessig.org/blog/2004/06/to_promote_progress.html#comment-4875 Thanks to Steve, Jay, Joseph, and John for their comments and suggestions above.

Steve writes: “May I suggest a declaratory judgment action against the publisher. The lawsuit shouldn’t have to go very far to smoke out the facts of whether the publisher holds the copyright or not.”

My response: I don’t have money to invest in this kind of fishing expedition. Would such an action be of general benefit to the cause of righting copywrongs in the US? If so, maybe someone would be interested in donating to the cause(?).

John writes: “Might the writer be interested in using this as a test case to see whether that Sonny Bono “libraries and archives” exemption (17 USC 108(h))
will hold up?”

My response: No, not really. To put it into an electronic format requires labor which I’m not interested in donating without some return on that investment–at least a decent per hour rate for my work. I’m not in this for hope of profit, but even in non-profit enterprises labor expenses are allowed. Also, I’m assuming that by “test case” you mean that I’d go ahead and do it and cite 17 USC 108(h) as a defense when I’m sued, right? Ahhh….no, I can’t afford the exposure.

Re Joseph’s comments about state law: This is an interesting idea. Do you mean that somehow the copyright to the author’s works could be bestowed on a library or claimed by the state in the absence of mention in the author’s will? please elaborate.

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By: Steve http://www.lessig.org/2004/06/to-promote-progress/#comment-4874 Mon, 07 Jun 2004 15:07:07 +0000 http://lessig.org/blog/2004/06/to_promote_progress.html#comment-4874 May I suggest a declaratory judgment action against the publisher. The lawsuit shouldn’t have to go very far to smoke out the facts of whether the publisher holds the copyright or not.

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By: Jay Fienberg http://www.lessig.org/2004/06/to-promote-progress/#comment-4873 Mon, 07 Jun 2004 00:53:28 +0000 http://lessig.org/blog/2004/06/to_promote_progress.html#comment-4873 Wow, that is a good description of what it is like trying to get a handle on book rights.

My firsthand experience trying to get reprint rights (when i was a librarian) was that it was deeply frustrating and time consuming to track down rights holders for most books. We used to consider ourselves extremely lucky when we tracked down someone who was confident that they held a specific book’s copyright and could grant reprint rights.

Over six years, I think we managed to track down 50 titles’ rights holders out of about 500 titles we were looking to get permission to reprint. (Of course, about half of the rights holders we found were publishers, and many of them had policies that were prohibitive to small non-profit reprint efforts–”out of print in their control” or “a lot of money” were the only options they’d consider.)

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By: Joseph Pietro Riolo http://www.lessig.org/2004/06/to-promote-progress/#comment-4872 Sat, 05 Jun 2004 23:59:06 +0000 http://lessig.org/blog/2004/06/to_promote_progress.html#comment-4872 Also, be sure to read state law on the distributing
properties after wife’s death. It is very likely
that someone or local library still owns copyright
in his work. It could be the state that still holds
copyright. If the state still holds copyright,
you may be the lucky person to acquire the copyright
(and here is my advice: dedicate the work to the
public domain rather than waiting for the copyright
protection to expire).

There are many ways that the copyright law can be
improved but you are facing the multitude of authors
and artists who want to maintain copyright down
to the last second of the copyright term regardless
of how senseless they are.

Joseph Pietro Riolo
<riolo@voicenet.com>

Public domain notice: I put all of my expressions
in this comment in the public domain.

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