October 12, 2011  ·  Lessig

Like a fever, revolutions come in waves. And if this is a revolution, then it broke first on November 4, 2008, with the election of Barack Obama, second, on February 19, 2009, with the explosion of anger by Rick Santelli, giving birth to the Tea Party, and third, on September 10, 2011 with the #Occupy movements that are now spreading across the United States.

The souls in these movements must now decide whether this third peak will have any meaningful effect — whether it will unite a radically divided America, and bring about real change, or whether it will be boxed up by a polarized media, labeled in predictable ways, and sent off to the dust bins of cultural history.

In the Civil Rights Movement, Dr. Martin Luther King, Jr., championed a strategy of non-violence: that in the face of state sponsored and tolerated aggression, the strongest response was a promise not to respond in kind.

In this movement, we need a similar strategy. Of course a commitment to non-violence. But also a commitment to non-contradiction: We need to build and define this movement not by contradicting the loudest and clearest anger on the Right, but instead, by finding the common ground in our demands for reform.

So when Ron Paul criticizes the “Wall Street bailouts,” and attacks government support for “special businesses” with special access, we should say, “that’s right, Congressman Paul.” Bailouts for the rich is not the American way.

And when Rick Santelli launches a Tea Party movement, by attacking the government’s subsidies “to the losers,” we should ask in reply, what about the subsidies “to the winners” — to the banks who engineered the dumbest form of socialism ever invented by man: socialized risk with privatized benefits. What, we should ask Mr. Santelli, about that subsidy?

Or when Republican Senator Richard Shelby tells NBC’s Meet the Press that the message in bank reform “should be, unambiguously, that nothing’s too big to fail,” we should say that’s right, Senator, and it’s about time our Congress recognized it.

Or when Sarah Palin calls GE the “poster child of crony capitalism,” we should say “Amen, Mamma Grisly”: For whether or not we are all believers in “capitalism,” we should all be opponents of “crony capitalism,” the form of capitalism that is increasingly dominating Washington, and that was partly responsible for the catastrophe on Wall Street in 2008, and hence the catastrophes throughout America since.

We should practice “non-contradiction,” not because we have no differences with the Right. We do. We on the Left, we Liberals, or as some prefer, we Progressives, have fundamental differences with people on the Right. Our vision of that “shining city on the hill” is different from theirs. Our hopes for “We, the People,” are more aspirational. More egalitarian. More ideal.

But even though our substantive views are different, we should recognize that we have not yet convinced a majority of America of at least some of our fundamental views. And that in a democracy, no faction has the right to hold a nation hostage to its extreme views, whether right or not. We should fight in the political system to win support for our Liberal views. But we should reject the idea that protest, or violence, or blackmail are legitimate political techniques for advancing views that have not yet prevailed in a democratic system.

Instead, we should use the energy and anger of this extraordinary movement to find the common ground that would justify this revolution for all Americans, and not just us. And when we find that common ground, we should scream it, and yell it, and chant it, again, and again, and again.

For there is a common ground between the anger of the Left and the anger of the Right: That common ground is a political system that does not work. A government that is not responsive, or — in the words of the Framers, the favorite source of insight for our brothers on the Right — a government that is not, as Federalist 52 puts it, “dependent upon the People alone.”

Because this government is not dependent upon “the People alone.” This government is dependent upon the Funders of campaigns. 1% of America funds almost 99% of the cost of political campaigns in America. Is it therefore any surprise that the government is responsive first to the needs of that 1%, and not to the 99%?

This government, we must chant, is corrupt. We can say that clearly and loudly from the Left. They can say that clearly and loudly from the Right. And we then must teach America that this corruption is the core problem — it is the root problem — that we as Americans must be fighting.

There could be no better place to name that root than on Wall Street, New York. For no place in America better symbolizes the sickness that is our government than Wall Street, New York. For it is there that the largest amount of campaign cash of any industry in America was collected; and it was there that that campaign cash was used to buy the policies that created “too big to fail”; and it was there that that campaign cash was used to buy the get-out-of-jail free card, which Obama and the Congress have now given to Wall Street in the form of a promise of no real regulatory change, and an assurance of “forgiveness.”

“Forgiveness” — not of the mortgages that are now underwater. The foreclosures against them continue. “Forgiveness” — not even of the sins now confessed by Wall Street bankers, for our President has instructed us, no crimes were committed. “Forgiveness” — just enough to allow candidates once again to race to Wall Street to beg for the funds they need to finance their campaigns. The dinner parties continue. The afternoons at the golf course are the same. It’s not personal. It’s just business. It is the business of government corrupted.

There is no liberal, or libertarian, or conservative who should defend these policies. There is no liberal, or libertarian, or conservative who should defend this corruption. The single problem we all should be able to agree about is a political system that has lost is moral foundation: For no American went to war to defend a democracy “dependent upon the Funders alone.” No mother sacrificed her son or daughter to the cause of a system that effectively allows the law to be sold to the highest bidder.

We are Americans, all of us, whether citizens or not. We are Americans, all of us, because we all believe in the ideal of a government responsive to “the People alone.” And we all, as Americans, regardless of the diversity of our views, need to stand on this common ground and shout as loudly as we can: End this corruption now. Get the money out of government. Or at least get the special interest money out of government. And put back in its place a government dependent upon, and responsive too, the people. Alone.

“There are a thousand hacking at the branches of evil” — Thoreau, 1846, On Walden — “There are a thousand hacking at the branches of evil to one striking at the root.”

If this fever is to have its effect, if this revolution is to have any meaning, if this struggle — and the carnival notwithstanding, it is an obvious struggle to sleep on the streets — is to have real consequence, then we all, Left and Right, must strike first at that root.

“It is the duty of youth,” they say Kurt Cobain said, “to challenge corruption.” He may have meant a different corruption, if indeed he uttered this poetry too. But whatever he meant, embrace his words. It is your duty to challenge this corruption. And once you have ended it — once we have restored a government that cares about what its people care about first, and not just its funders — then let us get back to the hard and important work of convincing our fellow citizens of the right in everything that is left.

  • http://k.lenz.name/LB Karl-Friedrich Lenz

    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.

  • lessig

    Very true, Professor Lenz, though the strategy in a context like this is to preserve a claim, not so much to press it.

  • http://dhudson.com doug

    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.


  • Dave Woycechowsky

    “[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?

  • Matthew Saroff

    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.

  • John S.

    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.
    therefore B

    this isn’t a valid argument form, though.

    “should be necessary” isn’t a conclusion that I see can be drawn here.

  • Tim Cullen

    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?


  • Anonymous

    If unconditional copyright is declared unconstitutional, what would be the status of all the works published after 1976 that did not register their copyrights?

  • bruce

    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.

  • kevinr

    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?

  • Joseph Pietro Riolo

    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
    <[email protected]>

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

  • tim cullen

    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.


  • Eusebio

    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”.

  • J.B. Nicholson-Owens

    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.

  • Alex Hioreanu

    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.

  • http://goldfndr.home.mindspring.com/ Richard Finegold

    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.

  • John S.

    I don’t know the answer to that either Richard, but check this out:


  • Matthew Saroff

    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?

  • Joseph Pietro Riolo

    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

    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

    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
    <[email protected]>

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

  • Alex Hioreanu

    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.

  • Joseph Pietro Riolo

    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

    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

    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
    <[email protected]>

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

  • Nathanael Nerode

    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.

  • Nathanael Nerode

    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.