• Matthew Saroff

    Between copyright law and privitization of public services, we are approaching a Randroid eutopia.

    I believe that the rest of us would call that a statist totalitarian regime.

  • http://www.kcoyle.net Karen Coyle

    What I find especially sad is the degree to which the judge leaned on *Eldred* as precedent. It makes trying and failing to be worse than not trying at all. No credit seems to be given for having made a good enough argument to go before the Supremes. *sigh* Makes me glad that IANAL.

  • http://oknarb.web-log.nl Branko Collin

    “Argument” is presumably not some quaint legal term, but just means that the judge dismissed the case without telling why? Is a judge allowed to do that?

  • Fuzzy


    “argument” is short for “oral argument” and so this means that the judge read over the papers submitted by both sides but did not hold a court session where both sides could argue in person for their respective points of view.

    The judge did give the reasons why they decided to grant the Justice Department’s request to dismiss the case.

    Please read the PDF file for more details.

  • Max Lybbert

    Fuzzy’s right, Branko. The judge dismissed the case without calling the lawyers in to talk about it. The lawyers had already filed papers explaining their positions, but never got a chance to talk about it.

    This isn’t unusual. Except, in this case the judge had already ruled once to not dismiss the case. The government then asked the judge to reconsider, and the judge decided to dismiss the case.

    Since IANAL either, I don’t know if Lessig will appeal based on this point or on some other. The announcement on the official website for Lessig’s side was incredibly excited that the case wasn’t dismissed the first time. Based on that, I assume Lessig was always expecting a bumpy road on his way to the Supreme Court. The ruling does show what Lessig will have to overcome if he hopes to eventually win. The ruling does not show Lessig’s arguments to overcome it.

  • Matthew Saroff

    Have you considered just blocking all of the chinese netblock?

    It might help with bodazhang.

  • Jardinero1

    I am totally sympathetic to the plaintiffs in Kahle vs. Asscroft but maybe it’s time to take a different tack.

    Most real property in the USA is on an opt out system, that is, it is assumed that someone owns everything which is tangible. In spite of this most property requires registration or title. Real estate, cars, financial assets, even things like jewelry and art get professional appraisals(a form of registration) to prove their worth for insurance and estate purposes. The reason for this is to streamline claims to ownership and damages, if need be. Registration is required in spite of the fact that that real property is basically an opt out system. This is a more practical argument and one that the big, commercial, copyright owners might embrace.

    If a work is truly orphaned there is not any liability in reprinting/reusing it. What do I propose creators should do if they are uncertain of the ownership of a work? Do what the pornographers do: just print it with the disclaimer that you believe it is in the public domain, if it isn’t you’ll remove it. That might open the floodgate to a great deal of civil litigation but that is what is required to highlight the absurdity of the situation and get the Congress and Sony and Disney and Viacom on board the registration bandwagon.

    This may seem an unseemly, and unelegant solution compared to winning a first amendment case but we are in a war of attrition with the commercial copyright owners. When a million little copyright guerrillas are defendants in a million litttle lawsuits each saying: “well shit, this wouldn’t happen if the copyright owners would register their ownership somewhere.” Then we might finally see some positive changes back to an opt in system.

  • http://www.kcoyle.net Karen Coyle

    … just print it with the disclaimer that you believe it is in the public domain, if it isn’t you’ll remove it.

    Actually, Canada has institutionalized that approach, although an even less formal process would be desirable. You can register that you tried to find the copyright owner, show that you did the appropriate due diligence, and your “claim” is then added to their “orphaned works” database. That makes it easy for interested copyright holders to find out that their works are being used, and it also apparently indemnifies you from copyrigt claims. However, the fact that only a few hundred of items are now in that database makes it clear that it’s not a process that most people will go through.

    So how about this as an idea: register uses of orphaned works. Before you go through the whole research into copyright, you can see if anyone else has had the audacity to use the orphaned work. You can add your use to the record. We’d end up with a database of desirable works that no one has claimed copyright in. If someone does come along with a legitimate claim, however, everyone owes them some set fee or percentage of profits. So there’s a risk to declaring your use, but it is less risky than a “sneaky” violation of copyright.

  • Jardinero1

    A database of commercially viable “opted in” copyrighted works would be shorter than an orphaned works database, thus more efficient. Because they are deemed commercially viable the copyright owners might be willing to pay for the maintenance of such a system. Nobody will voluntarily pay for the maintenance of an orphaned works database. Prof. Lessig has covered all that.

    What I am suggesting is that by inviting lawsuits this would force commercial copyright holders to rethink their approach to the whole issue. They might decide that the present regime is tedious and expensive. They might even decide that if they set up a registry to prove ownership they might avoid all this costly litigation. The lawsuits would force them to put up or shut up about what works they want to keep and exploit commercially.

    The burden should be placed on the owner of the copyright to prove ownership; it is with all other property.

  • Max Lybbert

    Regardless of the way Canada’s law works, it would be nice to change copyright laws in the US to permit something of a “registered due dilligence” defense. Patent law could improve with this kind of technique as well.

    I don’t think it will happen, because it runs against the idea of an adversarial legal system, like the US has. Even so, it’s an interesting idea.

  • Jardinero1

    The burden should be placed on the owner of the copyright to prove ownership; it is with all other property.

  • polltroll





    [...]Saddam Hussein and his sons allegedly manipulated the world with bribes, kickbacks, front companies, smuggling and so on, all under the auspices of Annan’s personal appointee to run the oil-for-food program, Executive Director Benon Sevan.

    Also, Annan’s U.N. was paid on commission by Saddam Hussein to “monitor” Saddam. This totaled at least $1.4 billion, which the Secretariat pocketed for expenses. And everything about the program, like the identities of the companies, oil buyers, food contractors, quantities, and pricing has been a closely guarded secret.

    [...]And had the United States not raided Iraq and apprehended Saddam this incredible international syndicate would still be operating.




    [...]Reports from New York say that several other countries besides Pakistan have also voiced their support for Kofi Annan who is now serving a second term at the UN. Some of these countries are Japan, China, France and Germany.

    [...]Annan is being targeted by sections of the US media were his belated statements on the Iraq war, which did not support the US-led invasion of Iraq.




    AU: Stop foulmouthing Annan
    04/12/2004 10:48 – (SA)

    New York – The African Union on Friday voiced support for United Nations Secretary-General Kofi Annan, saying he was being unfairly subjected to attacks from growing “negative media reports.”

  • Nathanael Nerode

    Lessig: Comments for the legal work on Kahle v. Ashcroft.

    Focus on the key point: the switch from a *conditional* copyright regime,
    where copyright was held only by authors who declared that they wanted it, to an *unconditional* regime, where it is held whether or not people want it.
    (You should consider challenging the Berne Convention implementation acts directly.) The unconditional regime was present in *other* countries, but had never been present in the United States.

    This is an *enormous* change to the general contour of copyright law (to use the Eldred court’s language), and as such justifies the most careful scrutiny. And it has profound, real harm.

    Dig up as many examples as you can of the ways this has damaged people’s First Amendment rights. For instance, each comment here is copyrighted and I cannot legally reproduce them in their entirety without permisison from their authors — who may be anonymous and untraceable! In contrast, under pre-Berne law, I could have quoted them, because none of the authors bothered to put on copyright notices.

    This has major negative implications for journalism, among other things; and it interacts *very* poorly with the Internet, on which people “publish” things which would traditionally have been spoken. In order to assemble a collection of someone’s online statements, as a way of showing what his views are, you now need to get *his permission*. (There is no clear, blanket, safe, fair use right allowing it.) Imagine trying to do that with someone whose views you disagree with, and you should see that it comes into direct and immediate conflict with the First Amendment.

    It hits Internet archives directly. Under pre-Berne law, an archive could legally reproduce pretty much anything put out without a copyright notice; not now!

    Frankly, this bites judges’ written opinions as well. Unless there is a specific law exempting them (or they are considered to be “works created by the federal government”, which wouldn’t apply to state judges), these are creative works made by the judge, subject to his copyright, and cannot be legally reprinted without his permission (unless you get lucky and the vague, indefinite protections of fair use allow you to) . Under pre-Berne law, judges’ opinions were generally circulated without copyright statments, and were therefore in the public domain.

    The only reasonable fixes I can think of for this massive legal error known as the implementation of the Berne Convention are (1) returning to conditional copyright, or (2) an enormous expansion of fair use rights, far beyond what was traditionally allowed, to allow any and all uses of the sorts of publically available text which authors traditionally did not bother to copyright.

    A band-aid patch, which would help, would be to specify a standard form which an author could use to put his own work into the public domain. Currently there is *no clear way to do this*. Under pre-Berne law, this could be done simply by deliberately publishing without a copyright notice. Now nobody knows how to put their work in the public domain safely (so that their heirs can’t try to claim copyright).

    At the *very least*, the judicial system should guarantee the right of authors to put works in the public domain if they *want to*!

    Oh. Ahem. I place this work in the public domain if that’s legally possible, and if not, I grant an unconditional, permanent, irrevocable license, binding on my heirs and assigns, to any person whatsover, to treat this work as if it was in the public domain. (See, the need for that statement is *grotesque*, and the courts should realize that!)

    As a matter of practice, most people behave as if the old laws were in effect; if something looks like it’s in the public domain, they treat it as if it is. This is human nature, and it is good for the progress of knowledge.

    Hmm. Non-lawyer thinking out loud here. Is it possible to overturn the law on a pure equity basis: that the law, as applied to works for which the authors had no interest in or desire for copyright, clearly hurts everyone (and hurts the Progress of Science), while helping precisely nobody (since desire for copyright clearly didn’t drive the creation of the work), and so it is manifestly unjust?

    I’d be a *lot* happier if copyright was strictly restricted to works for which the author(s) claimed copyright. This wouldn’t really be a “formality”, and so ought to satisfy the Berne Convention; they can claim copyright in any way they like as far as I’m concerned (“This here is mine, and don’t you copy it without my say-so”), but I think it’s vital to open discourse that copyright only adhere to works for which the author chooses to claim it.

    I don’t think that the legal documents previously submitted in the case sufficiently emphasize this fantastic, enormous change in the nature of copyright law: previously copyrights were only granted to those who *wanted* them. Now they are granted even to those who *don’t want* them. Nobody can say that this isn’t an enormous change, and it certainly doesn’t promote any public cause.

    Please do use this comment in any way you can if it helps at all.

  • Nathanael Nerode

    The judge claims on page 22 that “Plaintiffs have not argued that Congress could not rationally have believed that the challenged changes to copyright law would provide any benefit to authors…”

    Well, the plaintiffs *should* have argued that, because in fact the new unconditional copyright regime causes direct harm to authors — in the inability to make derivative and collective works based on works by other authors who cannot be found, or who are anonymous.

    Given that the elimination of notice requirements causes known and proven direct harm — while providing zero benefit save possibly for extraordinarily lazy authors (really, how hard is it to write “Copyright 2004 Joe”?), Congress cannot have rationally believed that the total elimination of the notice requirement had any benefits for authors.

    It’s also notable that the judge, in claiming that there is no change to the
    countours of the copyright system, defers entirely to Congress’s description of notice and registration requirements as “formalities” — despite noting that earlier Congresses recognized these as substantive and valuable requirements. (In the analysis of whether the contours of the copyright system have been changed, a stricter standard than “rational basis” must be applied, because this is the question of whether “rational basis” is appropriate.) This makes the judge’s argument extremely unconvincing; perhaps he could be convinced to reconsider.

    Oh. Ahem. I place this work in the public domain if that’s legally possible, and if not, I grant an unconditional, permanent, irrevocable license, binding on my heirs and assigns, to any person whatsover, to treat this work as if it was in the public domain.

    Please do feel free to use stuff such as the above (!) as ammunition in the argument that the change from conditional to unconditional copyright is massive. (Perhaps the Internet Archive should be suing for a declaratory judgement that they can reproduce, permanently, any page which is published without notice of copyright. This would be good for the Wayback Machine and would be a start at restoring the original contours of the copyright system.)