Save the Orphans
So the Stanford Center for Internet and Society has filed an action on behalf of the Internet Archive and the Prelinger Archive challenging unconditional copyright restrictions that "orphan" works. Relying upon the silver lining in that dark cloud that was Eldred v. Ashcroft ("But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary"), this case challenges a fundamental change in the contour of copyright protection, and asks the district court to therefore provide "further First Amendment scrutiny."
The fundamental change in the "traditional contours of copyright protection" is Congress's abandonment (formally in 1976, but effectively only in 1992) of any formalities for copyrighted work, and in particular, the requirement that copyrights be renewed. In 1992, Congress passed the BCIA, extending the term of all works in their initial term in 1964 through 1978. The Sonny Bono Act then extended those terms in 1998. The CTEA was thus the first statute in the history of the US generally to extend the term of copyrights that did not, or would not, pass through the filter of renewal.
The case is described on the CIS site. The complaint is linked here.
Pundit watch: you'll be able to identify a pundit who has not read either Eldred or the complaint when they suggest the case is the same as Eldred was. It is not. Indeed, the claims are fundamentally different. The only relation between the two is that Kahle/Prelinger v. Ashcroft follows the rules suggested in Eldred for challenging Congress's transformation of the traditional contours of copyright law. Eldred said: tradition matters. This case says: the tradition was radically changed.
If the case were to prevail, Congress would have to reenact the Sonny Bono Act to protect non-orphaned works. Of course, there'd be more opposition now, so it's not clear such a law would pass, but under Eldred, they'd be free to do so. Or, alternatively, Congress might moot the case by passing a law that effectively imposed a renewal requirement. Say, for example, the PDEA.
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Comments (25)
I have read both Eldred and the complaint, but I don't agree with your statement about the "only relation" between Eldred and this case.
Paragraphs 112 to 116 of the complaint request the court to reconsider the Eldred decision. At least this part seems to be nothing more than an effort to get Eldred reversed with a new argument.
On the other hand, that is only one part of the complaint. It would indeed be wrong to assume that there is nothing new to be seen here.
Very true, Professor Lenz, though the strategy in a context like this is to preserve a claim, not so much to press it.
Here's my big fear: because the public-interest theory of copyright is, at least for the time being, not viable, these new lawsuits run the risk of not only reinforcing Eldred's holding but also closing the true exception set forth for DMCA-style imbalance. That window should not be closed before it can really be tested in court.
Give me just 2kb of your time to explain...
The "traditional contours of copyright" language in Eldred seemed directly and implicitly targeted at the DMCA -- the DMCA is the first recent law to remove the balance between judicially established fair use rights as later set down in 17 USC 107 and the copyright holder's rights to exclude in 17 USC 106. One of the key holdings of both Nation Enterprises and Eldred was, at least in my opinion, that the balance between section 106 and section 107 was sufficient to protect First Amendment interests.
The DMCA removes the impact of section 107, thus creating a first amendment imbalance that demands higher scrutiny. Traditional copyright-first amendment contours have been altered so higher scrutiny applies. That's all I initially get out of the magic sentence in Eldred.
After Eldred, it seems clear that the traditional contours language refers to first amendment balance, not public interest balance. The former is a constitutional concern, the latter (although the great dissent and many of us commentors disagree) is a matter for congressional balancing -- effectively a matter of procedure.
Unfortunately, these new lawsuits, while well intentioned, rely on what Eldred did not say. They try to recast what was lost in Eldred as part of the "traditional contours" subject to higher scrutiny. By aiming to invalidate quasi-perpetual copyright via an "effectively perpetual" rationale, and by arguing the effect of lack of notice and uncertainty on the public, the new lawsuits really do rely on the public-interest theory of copyright mostly rejected in the Eldred decision. It is very difficult to effectively treat these flaws in copyright law as First Amendment flaws that fall into the context of the magic sentence in Eldred.
There is an opening here for challenging the first amendment problems underlying certain (some say) flawed provisions of the DMCA via the magic sentence of Eldred. I fear that these lawsuits may unintentionally close that opening by conflating first amendment concerns with public interest notice and length concerns. The First Amendment connection is simply too tenuous to be rescued by a single sentence in an opinion otherwise holding completely to the contrary.
-dh
"[The] conclusions [of the law and economics movement] will surprise advocates from both sides of this increasingly contentious debate."
Looks like one side has overcome its surprise and gone filed a lawsuit. A question: Can a dust jacket blurb be redeemed for an amicus brief?
I'm waiting for some 3rd world country to tip the copyright renewal gold mine.
If, for example, Botswana required renewal of copyright every 5 years at, for example, $10,000 per renewal, I think that it would generate somewhere between 10 million and a billion dollars a year.
Imagine the fees paid for just the Beatles, the Beach Boys, Jefferson Airplaane, Jimi Hendrix, Janice Joplin, The Sex Pistols, The Rolling Stones, The Who, The Kinks, Pink Floyd, Elvis Presley, Motown, and Microsoft (which really does not want to compete against older versions of its applications and operating systems).
They'd get the money, because anyone could set up a server in Botswana, and distribute the stuff otherwise.
It would generate a lot of money, and with a 40% HIV infection rate, they need it.
Reading the document now, and don't understand paragraph #82. It says this follows by implication from 81. This seems to have this form:
if not A, then not B.
A
--------
therefore B
this isn't a valid argument form, though.
"should be necessary" isn't a conclusion that I see can be drawn here.
I read the FAQ and saw that the gist of this suit is to ask for a return to some implementation of 'formalities' akin to the pre-1976 act and/or pre-BERNE Convention, specifically, registration and renewals. What really gets me is one particular ramification if this were to come to pass:
Would each release of a computer program need to be re-registered?
This would certainly negatively impact much GPL'ed code out there. All the benefits from the open source model of "release early, release often" could be lost, depending on how this return to formalities was implemented.
Am I missing something here?
tim
If unconditional copyright is declared unconstitutional, what would be the status of all the works published after 1976 that did not register their copyrights?
Matthew: Were Botwswana to do such a thing, they would not get lots of new income, they'd get bombed by the US for being a dangerous "pirate" nation.
A parallell question to Mr. Cullen's which may shed some light on the issue. Prior to 1976, did each issue of, say, a newspaper or magazine need to be separately registered for copyright, or was there some means by which they were exempted?
Responsing to Tim Cullen's comment:
Why do you think that you should have free
ride to obtain limited monopoly in your
work including program? People needs to
know which work is copyrighted and which
work is in the public domain. It is your
responsibility to inform us that you want
to copyright your program. This means that
you have to pay the Copyright Office some
fee. (Very similar to patent and patent office.)
But, apparently you want to get limited
monopoply in your program for free (in
term of cost) rather than releasing your
program to the public domain where it can
be used freely (in term of freedom).
Joseph Pietro Riolo
<riolo@voicenet.com>
Public domain notice: I put all of my expressions
in this comment in the public domain.
Mr. Riolo:
My comment was just to point out the implications of a return to pre-1976 formalities, which seems to be what this complaint argues for, would mean for the open source community. All open source licenses rely to some degree on copyright as their leverage. If you violate the terms of the GPL, for example, you are liable for copyright infringement. The problem I speak about is this: if the requirement of registration returns, depending on how the copyright office implements it, it might create considerable administrative and financial overhead for open source projects that tend to release early and often (and thus causing such projects to lose the many benefits of such a release modality).
While I am certainly for restoring the Constitutionally mandated balance between progress for all and rewards for creators, a return to formalities is a decidedly problematic course to chart in pursuit of such a mission.
tim
I hope that this case can better avoid the "property word" trap. If it is perceived as "pro-property" vs "against-property" the scale will be tipped again from the beginning.
What needs to be clear is that the public domain is a legitimate owner of "intellectual property" and has a right to limit how much is given away and to recover it in due time. The fact that something belongs to the public does not make it less of a property right than the limited monopoly granted to an individual or entity. Taking away property from the public is as much of a "theft" as taking away property from an individual or entity. Public property is entrusted to the government who has a duty to exercise proper custody, with the Constitution establishing a guideline that it should only be given away for a limited time and for a specific purpose.
I hope this can be made clear and I never read in the news that "New breathing laws were just passed by congress. This is a great victory for the breathing air lobby. This lobby has been very active in their campaign to educate on the potentially huge financial gains that could be realized in the unexploited area of breathing air. A survey showed that the public is just interested on improving our economy and job creation and is convinced that these new laws will be helpful for these goals. One respondent noted: We should also educate other countries where breathing air is free that they are losing on the big benefits of paid air, free air is theft".
Eusebio: I fear that the language trap is already closing on those who want a more reasonable copyright regime--the wording in the websites discussing the case now talk about "copyright protection", as if a copyrighted work comes to some kind of harm when it is performed, copied, built upon in a derivative work, or used in a regulated way without permission from the copyright holder. Particularly with this case, which seems focused on making available commercially unavailable works (so-called "orphaned" works), it's important to convey that no such harm exists thus there is no need for talking about "protection".
By keeping these works locked up the copyright holder apparently makes no money and the copyright holder is apparently unwilling to spend the money to return these works to publication. The market has spoken and these works are not worth money as-is, even if they find an audience in the PD. We can't afford to think of copyright as profit-protection (which is the real "protection" being referred to obliquely) or as copy prevention (which is a far more accurate phrasing of the intent behind so-called "copy protection").
RMS routinely points out the biases in people's thinking by debunking the myths in their speech. Listen to the talks at gnu.org/philosophy/ and you'll hear him correct people who say something that doesn't accurately represent the situation at hand (typically associating him with the open source movement which he has nothing to do with, or talking about "intellectual property" which is a prejudicial catch-all phrase that erroneously blurs copyright, trademark, patent, and other areas of law more murky than clear). I highly recommend reading http://www.gnu.org/philosophy/words-to-avoid.html for a great series of short explanations on why to avoid these and other phrases.
While I agree with Mr. Riolo that a copyright extension fee applied to software may be useful to clarify what software is copyrighted and to extend the availability of software to everyone (such as making GPL-licensed software fall into public domain, allowing such software to be incorporated into proprietary works), I'm worried that such a fee would expose authors to liability claims.
Consider that most Open Source licenses also include a warranty disclaimer. For licenses such as the modern (one- or two-clause) BSD license or the X11 or MIT licenses, the warranty disclaimer (and the gaurantee that the warranty disclaimer must remain attached to the software) is the only license provision that differentiates the software from public domain.
If software falls into public domain without copyright extension formalities, this may expose the author to the product liability claims that the BSD/X11/MIT licenses attempt to disclaim. Even if the extension fee is minimal, it imposes an undue burden upon the author because (1) the author generally makes no money from such software and (2) the fee is recurring throughout the author's lifetime. With other media (books, etc.), the fee will only be paid as long as the work is profitable to the copyright holder; with proprietary software (and other media), this fee can come out of the revenue gained from the work, but it would come out-of-pocket for authors of most BSD/X11/MIT-licensed software.
If we charge a fee of, say, $30, per copyright extension, this imposes an actual financial burden upon authors who have released dozens of software packages. Rather than encouraging authors to release works for public benefit, an extension fee would discourage authors from making works publically available in the first place.
I do not know whether anyone has successfully won a lawsuit against an author of public domain software, but the fact that large organizations (such as MIT or the University of California) choose these licenses in lieu of placing software in the public domain leads me to believe that placing software in the public domain is dangerous. Indeed, this has been discussed before on the
opensource.org mailing lists.
Is the public domain so open to lawsuits? If somoene was walking through a public land, tripped, and died as a result of their fall, can they sue the rangers/government for allowing the fall? Is there an exemption that applies to public lands, or can one be created that would apply to publicly-owned goods?
Regarding fees and "release early and often": updates would tend to be derivative works sanctioned by the "copyright owner" and might not fall into the public domain as easily as you might think.
I don't know the answer to that either Richard, but check this out:
http://www.duluthsuperior.com/mld/duluthsuperior/news/8254366.html
Bruce, you are a cynic.
You're probably right, that we'd bomb them, but you are a cynic.
Is it my imagination, or are recreating the Chinese Opium wars with trade in general and IP in particular?
Responsing to Tim Cullen's comment dated
March 23, 2004 at 6:34pm:
I can see how you see formalities as a
problem for the open source community.
My contention is that you see formalities
as a problem while I see them as a fair
way to gain limited monopoly that lasts
for a very long time (more than 70 years).
I think that you are spoiled by the current
copyright law that anything that you see
as a burden is labeled as a problem for you.
There are two ways to get around the
"problem" as you see it. One way is not
to release new changes too often. Second
way is to take advantage of the grace
period. I don't have the old copyright
law with me but if I recall correctly,
the grace period is three months after
you make your program available to the
public. In this way, you can consolidate
all changes within three months and
register all of them as a unit for
copyright.
Still, if you don't like formalities,
you should write a letter to Professor
Lessig asking him to drop the court case.
(I am playing devil's advocate here.)
It is incorrect to say that a person
who violates GPL also infringes copyright
because not every violation of GPL is
also a violation of the copyright law
and vice versa.
Responding to Alex Hioreanu's comment:
There are some misunderstandings about the
relationship between liability and copyright
(and public domain) that they become a myth.
There is no direct relationship between
liability and copyright. The fact that a
work has copyright has no affect on the
liability issues. So are the public domain
works.
The public domain works can include
warranty disclaimer if the distributors
of these works want to. Project Gutenberg
is a good example. This is not anything
different from works that have copyright
and include warranty disclaimer.
The reason why these large organizations
such as MIT or the University of California
don't want to dedicate their software to
the public domain is that they want to
retain control over their software. This
has nothing to do with liability issues.
The people in the community want to have
complete control over their works so that
they can enforce terms and conditions of
open licenses on people. Without control
(by dedicating software to the public
domain), open licenses are meaningless.
Joseph Pietro Riolo
<riolo@voicenet.com>
Public domain notice: I put all of my expressions
in this comment in the public domain.
Mr Riolo,
My specific concern is that the author of an uncopyrighted program cannot guarantee that the users of his program have seen a warranty disclaimer. To make this link explicit: in the case of the BSD/X11/MIT licenses, the link between liability and copyright is that copyright ensures that the liability disclaimer must remain with the work.
As an example, suppose I write a program and allow its distribution along with a BSD/X11/MIT liability disclaimer protected in the tradiational manner through copyright. Under the current interpretation of copyright, I can feel secure that anyone who obtains my program within my lifetime obtains with it a liability disclaimer since, under the provisions of the license, the program cannot be distributed without the copyright notice and liability disclaimer. Furthermore, I can feel secure that anyone who uses my program (or incorporates its code, etc.), has read the license and liability disclaimer since the only rights to use the copyrighted program are granted by the license.
Under the proposed ruling, my program can fall out of copyright within my lifetime. When this happens, anyone is free to distribute the program without the liability disclaimer attached and I can therefore no longer feel secure that anyone who has obtained the program has read the liability disclaimer.
I understand that product liability law varies by the states and that in some jurisdictions it is only necessary to demonstrate that the consumer's expectation of the product differs from the product's performance. Without copyright protection, I can no longer feel safe that the user of the program understood that the program had no explicit purpose or that the distributor of the program understood that the program was not fit for sale, so I may not have these defenses at my disposal should someone bring suit against me. If legal counsel could assure me that I can no longer be held liable for my public domain software once someone separates it from its liability disclaimer, then I would feel safe having software in the public domain; otherwise, I would prefer either keeping the protections that copyright currently grants me or ensuring that the software is not available to anyone at all. Unfortunately, the latter is not an option for software already released under MIT/X11/BSD licenses since these licenses are generally held to be non-revokable.
While I can see that Project Gutenberg attaches a liability disclaimer to their works, I also see that they attempt to protect this liability disclaimer with a registered trademark. Specifically, their disclaimer specifies that either all references to Project Gutenberg must be removed from distributed copies of the work or that the "small print!" section must remain in its entirety. Why did they feel it necessary to protect their liability disclaimer through this separate intellectual property claim? This method of protection is not applicable to many software projects.
Regarding this trademark protection, I have to ask, what was Project Gutenberg afraid of? Why should I not be afraid of the same thing? How can I attain what they believed a reasonable level of protection if my software goes into the public domain?
On a separate issue, I would also disagree with your claim that MIT and the University of California wrote their licenses to control the distribution of their software. The software community at large generally holds the opposite view and indeed has observed a number of high-profile circumstances where such software was adopted in a way the copyright holders did not approve of (Microsoft's subversion of MIT Kerberos, X11R6.4 licensing fees). I would ask that you base such accusations against these software authors on more than reputed knowlege of their intentions; for example, you could demonstrate in what ways (other than the single obvious restriction) this license is more limiting than public domain.
Responsing to Alex Hioreanu's comment:
Let me present two different scenarios.
Scenario #1:
Person A writes a program and dedicates
it to the public domain. Also, he or she
includes the disclaimer in the program.
He makes it available to the public.
Person B sees Person A's program and copies
it including the disclaimer. He likewise
makes it available to the public on his
own server.
Person C sees Person A's program on
Person B's server. Person C copies it
but deletes the disclaimer that comes
with it. Person C makes his truncated
program available to the public on his
server.
Person D sees Person C's truncated
program and copies it to his PC. He
runs it and somehow, it ruins one
of his important files.
What can Person D do? He can make
Person C liable for defect in his
truncated program.
Can Person D sue Person A? Although
Person D can sue Person A, court will
dismiss lawsuit because there is no
direct relationship between Person D
and Person A. Also, Person A isn't
responsible for the actions done by
other people.
Scenario #2:
Person R writes a program and decides
to retain copyright in it. Also, he
includes the disclaimer in the program.
He makes it available to the public
with the condition that the disclaimer
must goes with the copyrighted program.
Person S sees Person R's program and copies
it including the disclaimer as per the
agreement. He likewise makes it available
to the public on his own server.
Person T sees Person R's program on
Person S's server. Person T copies it
but deletes the disclaimer that comes
with it. Person T makes his truncated
program available to the public on his
server.
Person U sees Person T's truncated
program and copies it to his PC. He
runs it and somehow, it runs one of his
important files.
What can Person U do? He can make
Person T liable for defect in his
truncated program.
Can Person U sue Person R? Although
Person U can sue Person R, court will
dismiss lawsuit because there is no
direct relationship between Person U
and Person R. Also, Person R isn't
responsible for the actions done by
other people.
Although the two scenarios are very
similar regardless of whether a
program has copyright, there is
one important difference. Person
R in second scenario can sue Person
T for violating the agreement. It
is possible that Person R can sue
Person T for violating Person R's
copyright but that is not very likely.
On the other hand, Person A in the
first scenario can't do anything
with Person C because there is no
ground for lawsuit.
I mentioned Project Gutenberg as
an example because it showed that
the liability issues have nothing
to do with copyright. Even if
there is no claim for trademark
in a public domain work, Project
Gutenberg can always include
disclaimer if it wants to.
You asked me what is the difference
between MIT's open license and the
public domain. Although MIT's open
license is more liberal than many
other open licenses, there is still
one difference between MIT's open
license and the public domain.
That difference is the ownership.
MIT's open license still retains
the ownership in its works while
the public domain disclaims the
ownership in its works.
If you think that this is immaterial,
think of ownership as proprietary.
Also, think of ownership as a set of
legal rights. The public domain don't
have any of them. The fact that MIT
wants to retain proprietary/ownership
in its works speaks for itself.
Joseph Pietro Riolo
<riolo@voicenet.com>
Public domain notice: I put all of my expressions
in this comment in the public domain.
Joseph Pietro Riolo has it exactly right: if your work is in the public domain, you are no more responsible for people ignoring or stripping off your warranty disclaimer than you are if it's copyrighted.
Implied warranties come with *distribution*, not with authorship. If all the copies *you* distribute have a warranty disclaimer, it is not your problem if someone else removes it -- you cannot be sued on the basis of the warranty that you disclaimed (unless the warranty is non-disclaimable, of course). (The person who distributed it without the disclaimer, however, could be.)
This does not differ whether the work you distribute is in the public domain, is copyrighted by you, or is copyrighted by someone else.
This case has a practical advantage over Eldred: it's presenting immediate, specific harm to the "progress of science", in a situation where nobody else benefits -- abandoned works. With a good litigator, the courts will see that this is a very real immediate harm, which they apparently didn't notice in Eldred.
Dear Sir Madam
Background of the Orphanage center
Open your heart and your ear to a child lost there family by HIV/AIDS. The power to change a child’s life is in your hand
The idea of founding Tsige Taddess Orphanage Center has come into reality with the child loving inherent mature of the founder, Tsige Taddess.
18 years back, the founder has brought to light her child helping activity by supporting two children one boy and one girl ,Two years later ,i.e. 16 years ago, the founder has determined to expand her welfare effort to lift up to the present level.
It is Non –Governmental, Non- Political, and Non-Profitable Non religion welfare organization.
The orphanage center officially registered with the Ministry of Justice and Disaster Prevention and preparedness Commission in 2004, our registration CERTIFICATE number is 1518.The center of the organization is located 30 Km on the road to Desi, at place called Legedady Dam , the last stop of 44 bus.
The founder is a kind of person who is easily affected but human hardship in general and that of children in particular .She has never thought of that she would ever be a Mother of her present ‘’big family’’ of 106 children whose age fall in age category and out of them 2 girl’s are handicap.
At the beginning as the number of the children was small, she started to full her project by the money at her disposal, but soon, her project used up all her cash and demanded for more. She sold her jewelry’s, land many other valuable assets to keep alive her project, which was found in 1990.She has also used and still using her low scale dairy farming thought its contribution is continuation becoming negligible. Although, the founder of this organization proud of many children who have pass through her project and have now become sufficient and productive citizens and that saved many children from the darkness (possibility from death).she is dreadful of imminent danger coming fast to her organization for lack of fund to keep it function unless she get an immediate and sustain financial and material to support the kids if this not happen the orphans will be in problem.
Composition of the Children
As it has been mentioned above, the child currently receiving help are 106 from the founder, she don’t have any support. The orphanage center includes the following classes.
HIV/AIDS Orphans
Deserted children (deserted by their Parma mainly due to Economic reasons)
Thrown away babies (following unwanted pregnancies, economic problem)etc.
VISION
The organization is strongly commented to see all the children under custody to become self suffice and productive citizen of Tomorrow.
Mission
To bring up all the children the best possible way, care for their health, cloth lodging, education, healthy social interaction ethical conduct, etc.
Objectives of the organization
To create, as much as possible, a comfortable like environment (HOME), which is for the children to feed them and make them mentally and physically competent citizens.
To educate them well so that they become self sufficient, productive, nation building citizens who can lead a healthy social life.
Word of the founder
I have try to help those kids for 20 years with out any help but now I don’t have any income who are considerate and thoughtful to those children please we need your help. Save the kids.
I am asking this help behalf of the children to all humanitarian, charitable, individuals and organizations to extend their hands and forward their help before the life of those children is endangered and I am hopefully confident that I will receive positive answer and all the necessary support, I would like to thanks you for your time by the name of the kids.
“You must be the change you wish to see in the world”
“Mahatma Gandhi”
It is easier than you think to make a difference. When we all work together, even the little things we do can have a
significant impact in helping the orphan child.
Your donation will help us provide food, shelter, clothing and basic necessities to orphans. Your support will help us to provide emergency assistance, direct services, and permanent housing to over 106 of our most disadvantaged orphans.
Volunteers, donors, humanitarian organization and government non-profitable NGO child lover are most welcome to our orphanage center
E-MAIL t_t_o_c@yahoo.com
www.ttoc-et.org
WWW. TTOC.PICZO.COM
00251 911 249079 Mr. Abera at any time .
p.o.box 41238 Addis Ababa Ethiopia
With best regards
Mrs. Tsige Tadesse
Very true, Professor Lenz, though the strategy in a context like this is to preserve a claim, not so much to press it