Normally I find something like this and discover that the complainer either is making most of the problem up in his or her head, or actually wants to get rid of something else in the bill before Congress. However, this appears to be an issue of genuine concern for artists, especially poor artists who can't afford the "registry fees".
http://www.sellyourtvconceptnow.com/orphan.html
It would appear that Congress is already considering two bills, one in the House (H.R. 5889, "The Orphan Works Act of 2008") and one in the Senate (S 2913, "The Shawn Bentley Orphan Works Act of 2008") which would require all artists to register their artwork in private registries, none of which would be free to the artist. The claim made by the bill is that this will help people wanting to use artwork to avoid a future lawsuit by making it easier for them to "find" the artist.
The difficulty for artists everywhere is that if your artwork is not listed in any of the registries (possibly because you couldn't afford the fees), the person wanting to use your artwork can consider the artwork to be an "orphan work" and thus part of the public domain. No matter how well-known your work is throughout your region, the country, or the world, if your artwork is not in any of the registries then it would still *legally* be an "orphan work".
If you do take the infringer to court over using your artwork, the law strips you of your right to copyright infringement damages, instead allowing the infringer to pay whatever s/he/it feels is fair for use of the artwork.
This law was attempted in 2006 and failed due to pressure from creators such as artists, illustrators, textile companies, and the like. Apparently these new laws are on a fast track to get passed into law before the election campaigns of Congress members start in the late summer.
Just to underline that the government no longer cares about the rights of content creators, here's an excerpt from a letter (full text in the URL above) sent around by Brad Holland of the Illustrator's Partnership, a group which successfully opposed the 2006 bill:
========================================= Q: Where did we get the idea that the Copyright Office wants to impose for-profit registries? A: That proposal has been there from the beginning. Two examples (with emphasis added), the first from page 106 of the Copyright Office’s 2006 Orphan Works Report:
“[W]e believe that registries are critically important, if not indispensable, to addressing the orphan works problem...It is our view that such registries are better developed in the private sector..." http://www.copyright.gov/orphan/orphan-report.pdf =========================================
And on January 29 2007, twenty visual arts groups met in Washington D.C. with attorneys from the Copyright Office. The attorneys stated that the Copyright Office would not create these “indispensable” registries because it would be “too expensive.” So I asked the Associate Register for Policy & International Affairs:
========================================= Holland: If a user can’t find a registered work at the Copyright Office, hasn’t the Copyright Office facilitated the creation of an orphaned work?
Carson: Copyright owners will have to register their images with private registries. Holland: But what if I exercise my exclusive right of copyright and choose not to register? Carson: If you want to go ahead and create an orphan work, be my guest! - From my notes of the meeting =========================================
This exchange suggests that if Copyright Office proposals become law:
- Unregistered work will be considered a potential orphan from the moment you create it.
- In the U.S., copyright will no longer be the exclusive right of the copyright holder.
=========================================
Under existing law, “[a] copyright gives the owner the exclusive right to reproduce, distribute, perform, display, or license his work…Under current law, works are covered whether or not a copyright notice is attached and **whether or not the work is registered** (emphasis added).”
http://www.law.cornell.edu/wex/index.php/Copyright#copyright:_an_overview
=========================================
Hold up...
It doesn't sound unfair to me at all that you should have to pay some fee to register your work in order to extort a fee out of someone else for using the same work down the road. The fees shouldn't be 'excessive', but what does 'excessive' even mean today.
It's completely fair that you have to pay to register patents and trademarks today. It's fair because you are investing in the profitability of your innovation. Copyrights should be the same. How *fair* do you think it is that you are able today, to spend hundreds of hours on some work only to discover (after you've spent thousands, millions of your own money) to bring your idea to market, that there was some prior work with copyright that you had NO WAY to know about, but yet now, all your time, and all your money is in vain. Copyright law is supposed to *promote* innovation. Not discourage it. It is entirely unreasonable and impossible to expect all new inventors to just "know" about every secret copyright out there. At very least there should be a single registry one could search, and there will be some cost to run such a registry. It can either be paid for out of your taxes, or by the people who profit from it. The latter is obviously more fair.
Whatever some silly fee costs, it will only be "expensive" for those (think companies) that want to register millions of them to set up "intellectual property" landmines. And even if it is expensive today, wait another couple years until you're riding a bicycle because you can't afford gas, and then tell me what's expensive.
On Fri, May 30, 2008 at 12:40 PM, Leo Mauler webgiant@yahoo.com wrote:
On Fri, May 30, 2008 at 5:06 PM, Billy Crook billycrook@gmail.com wrote:
Seems the opposite. Individual/unsigned artists are more likely to find the fees expensive. Just like the patent system.
The issue is that this is _not_ the custom, and never has been. If I write a book or paint a painting, it's mine, and if someone plagiarizes or copies my painting I can sue them for damages. This is how it's always been. They're proposing instead to change it so that I must go out and pay someone to "register" my work - the supposition being that unless I go out to "register" it, it's public domain.
While that may be tolerable for commercial artists, it's a total screwjob for small artists and hobbyists. You know, every know and then some hobbyist manages to make a masterpiece... And those folks will get ripped off. The price may be tolerable to commercial artists, but it won't be for hobbyists. You shouldn't have to pay someone to protect what's yours.
Finally, your patent example is not cogent. You file a patent when you intend to make profit by your idea. An artist doesn't necessarily have a mass-market profit intention. Maybe he's selling a painting to a local patron. Maybe she wrote a song for her daughter. Those people might not have aspirations of selling millions of CDs or lots of lithographs, but that doesn't mean that someone else should steal their labor and mass market it at their expense. It's THEIR WORK.
This kind of bullshit bill basically says that your work is not yours unless you pay a fee to someone else who has the right to charge that fee because they paid off a legislator. So they start with artists, but I wonder how long until that movement starts applying to other kinds of property? That kind of scheme is something the mafia would be proud of.
Basically, if we went with your idea we'd start living in a world where you need to pay someone to register all of the stuff in your house. If you don't register it, ANYONE can walk into your house and steal your stuff. Does that sound absurd? Yes, it is, and it's a extreme logical conclusion of what this bill is striving for.
I think this idea is stupid. I'm sure it's a response to some people arbitrarily suing companies because of some similarities. If that's a real problem the real solution is reforming the legal system and making frivolous lawsuits more expensive - not creating some bogus registry that will only benefit the registry companies.
Jeffrey.
On Fri, May 30, 2008 at 5:06 PM, Billy Crook billycrook@gmail.com wrote:
On Fri, May 30, 2008 at 5:35 PM, Jeffrey Watts jeffrey.w.watts@gmail.com wrote:
According to the discussion on this issue in a Bloch school classroom, you must register a work to sue for damages. Without registration, you could just sue to get them to stop using your work. That is why people such as, say, Arlo Guthrie, register their works with the LOC.
There is an international convention on copyright that mandates that no registration is required.
http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protection_of_Literary...
On Fri, May 30, 2008 at 5:35 PM, Jeffrey Watts jeffrey.w.watts@gmail.com wrote: ...
So, uh, that means they should be able to just squander it? Meanwhile other people who independantly make something similar are either out of luck if they do want to sell it? It's THEIR WORK after all...
No. It basically says, if you have a *reason* to want copyright, you can have it. It says that if you actually don't want people infringing on your rights, they will be able to avoid it or contact you to negotiate licensing.
Wrong. Once this bill is passed, you will be able to safely derive from the works of others without wondering if they indended it to be "public domain" or if they wanted to control it. No more confusion, just type it's UPC/product name/fccid, hit enter, and know.
This legislation has nothing to do with your belongings, and in no way promotes burglary
registry that will only benefit the registry companies.
... and copyright holders ... and American citizens...
On Fri, May 30, 2008 at 6:26 PM, Billy Crook billycrook@gmail.com wrote:
So.... who do you propose that this will help? What will be he benefit of this as you see it?
This seems to mean that developers will have to pay to create open source software.
On Fri, May 30, 2008 at 6:32 PM, Arthur Pemberton pemboa@gmail.com wrote:
So.... who do you propose that this will help?
Anyone who wants to make a work and distribute it whether or not for profit.
What will be he benefit of this as you see it?
Clarity of what is and is not going to get you sued. Peace of mind that you're safe to make and distribute something.
This seems to mean that developers will have to pay to create open source software.
No. They will have the option of paying if they want to sue people for damages resultant of infringing. If they make money on their software themselves, they can afford to register it. If they do not, there aren't any damages from someone else making money.
On Fri, May 30, 2008 at 6:43 PM, Billy Crook billycrook@gmail.com wrote:
So if I make something, then in order for me to release it under the GPL/BSD, I will have to pay? And this is a good thing?
On Fri, May 30, 2008 at 6:43 PM, Billy Crook billycrook@gmail.com wrote:
How? What if you make something and don't copyright it, and then someone else makes it after you and does copyright it?
--- On Fri, 5/30/08, Billy Crook billycrook@gmail.com wrote:
Are you seriously sitting there claiming that there aren't any damages to you for someone else getting your paycheck after you've done all the work?
The open source developers, or so I've heard one GPL developer put it, trade their effort to you in exchange for you not selling their "free" product for the money they could have made selling their own product. Their lost income is by choice, in exchange for you not getting their income instead of them.
On Fri, May 30, 2008 at 6:26 PM, Billy Crook billycrook@gmail.com wrote:
I'd like to know if the copyright was renewed on the Busby Berkely film I watched last week, it was made in 1933. If it wasn't, its public domain and I can do whatever I want with a 20-year-old Ginger Rogers singing in pig latin, and publicly.
Allowing private companies to compete with this business that the library of congress has a monopoly on and aren't using all the latest technology? Sounds good to me.
All copyright and intellectual property laws should be abolished.
It's gratifying to this anarchist librarian to be alive when digital technology exposed the stupidity of a system that people hadn't questioned in generations.
The power behind "copyright" only exists to those who can afford to pay lawyers to sue people who "infringe" their claims to copyright. You'll notice that violence underlies the copyright system, in this case the threat of state violence if a court rules against you as the alleged "infringer."
It's even more easy to demonstrate now that the system of state-enforced intellectual property exists chiefly to benefit companies who want to enforce the scarcity of a physical product. Digital technology makes it easy to copy these intellectual products, thus challenging the middlemen who profit from the scarcity of these products. This is vividly illustrated by the ongoing collapse of the music industry, which was a network of capitalist middlemen who enforced scarcity on an arbitrary selection from a music culture. Now bands and artists can share their work on Myspace, on websites, and through other digital channels. This has democratized music creation and distribution. The music industry fights this by talking about infringement on intellectual property. They are really just trying to protect their monopoly on distribution and profit.
A stupid, barbaric system.
The RIAA legal campaign against file sharers will die within two years. I knew about their strategy before they launched it in desperation. The RIAA knows that they've lost the war. They were even of this opinion when they were fighting Napster.
Chuck
-------------------------- Bread and Roses Web Design serving small businesses, non-profits, artists and activists http://www.breadandrosesweb.com/
On Fri, May 30, 2008 at 6:26 PM, Billy Crook billycrook@gmail.com wrote:
No one independently makes a Mona Lisa in parallel. There's only one. The problem with this bill isn't its impact on "similar" works, the problem is that it will enable the theft of works. Again, it's a very blunt instrument to deal with the frivolous lawsuit problem. See my other comments on that.
See my "if you don't want your stuff stolen" analogy.
What happened to asking? This bill is clearly originator-unfriendly. Your example is from the perspective of someone who wants to use someone else's work more easily. That's nifty, but their needs are trumpted by the needs of the artist's.
This legislation has nothing to do with your belongings, and in no way promotes burglary
It's called an "analogy", and it's a rhetorical tool used to make a point.
... and copyright holders ... and American citizens...
... and not independent artists. Last I looked they're citizens too...
J.
--- On Fri, 5/30/08, Billy Crook billycrook@gmail.com wrote:
Is it just me, or are we veering on-topic again, with Mr. Crook arguing dangerously close to the concept that GPLing something should require a fee and, if the "licensing registry fee" isn't paid, anyone should be allowed to use what they like from the source code in the supposedly GPLed project?
Because this is exactly where I see laws like this headed, towards people not being allowed to control their own creations unless they pay some private business for the privilege. How, exactly, is this different from paying Microsoft for the privilege of being able to use a computer to write a novel or design some graphics?
EULAs are where they got the language for the "Orphan Works Act of 2008" acts currently in Congress.
On Fri, May 30, 2008 at 5:35 PM, Jeffrey Watts jeffrey.w.watts@gmail.com wrote:
Do you really think you should be posting such strong opinions on something you so obviously grievously ignorant about?
Registration requirements *ARE* the norm, they only went away 30 or so years ago.
As far as the OVERALL history of copyright, and how its been implemented, its traditional customs, what it has ACTUALLY accomplished, and what its actual Constitutional purpose is (hint: its not to create a welfare system for artists, or to allow them to own ideas, or even to OWN implementations of those ideas), you need to do A LOT of reading ... I recommend starting with the Lessig books ...
JOE
--- On Fri, 5/30/08, Billy Crook billycrook@gmail.com wrote:
Just so you know, the current primary breadwinner in this family is my wife the ARTIST, and we're so far down on the income scale that I am ALREADY riding a bicycle most of the time for groceries (bike cargo trailer) and basic transportation because we have to limit gas for art needs.
Or in other words, I think I can *currently* "tell you what's expensive". And "what's expensive" is per-item copyright fees for the artwork which is currently putting food on the table. Let's say the current minimum wage is the per-item fee, about $5 per item. Her portfolio is currently about 1,000 individual pieces, or about $5,000 to register all of it and prevent other people from selling it as their own. Since some of the current income is from prints of existing copyrighted artwork, all of it has some value and provides income. $5,000 *right now* will not happen, and credit will not happen either.
Corporations rake in billions every month. Individual artists "rake in" 100s every month. The law is clearly biased in favor of large corporations and against individual artists, even if we're talking a seemingly-low "registry fee" like $5 per item. Individual artists don't have a lucrative second department selling pharmaceuticals they can use to pay for their per-item copyright fees, especially if the fees aren't life-of-the-copyright fees.
But there are privacy issues as well. Copyright law means you get to control what happens to your private work, and unauthorized use is punishable by the courts. What happens, under the new law, if you have taken a photo which you do not want published? How can you register this photo with a registry without revealing the contents of the photo? If someone steals a photo which was created by you, current copyright law forbids them from publishing the photo. Under the "registry requirement" of the "Orphan Works" law, this photo will not be found in any registry, and thus will be considered an "orphan work" and freely publishable by anyone without fear of prosecution.
I promise all of you this: if this law passes, I'm going to take a picture of my ass and register it. I'll forward it to the list~ :-D
Jeffrey.
On Fri, May 30, 2008 at 11:35 PM, Leo Mauler webgiant@yahoo.com wrote:
But there are privacy issues as well. Copyright law means you get to control what happens to your private work, and unauthorized use is punishable by the courts. What happens, under the new law, if you have taken a photo which you do not want published? How can you register this photo with a registry without revealing the contents of the photo? If someone steals a photo which was created by you, current copyright law forbids them from publishing the photo. Under the "registry requirement" of the "Orphan Works" law, this photo will not be found in any registry, and thus will be considered an "orphan work" and freely publishable by anyone without fear of prosecution.
--- On Fri, 5/30/08, Jeffrey Watts jeffrey.w.watts@gmail.com wrote:
You think you're speaking entirely in jest, but just where do you think some of the "nude body" photos come from which are used in Photoshop to create "Jennifer Aniston...Naked!!!"?
If you don't register the copyright of your ass the instant such a law passes, then your ass may end up Photoshopped into a fake "nude" photo of John McCain/Ted Kennedy (pick the one which makes you personally say "oh horror!").
On Fri, May 30, 2008 at 6:48 PM, Arthur Pemberton pemboa@gmail.com wrote:
So if I make something, then in order for me to release it under the GPL/BSD, I will have to pay?
No. You have to register your copyright if you think you have the right to tell other people they can't make money off of it. A database of every greedy artist/author's works will be large, and require upkeep which should be paid for by the people who benefit from said database.
And on a side note, if you released under the BSD license, it would generally mean you didn't give a damn about what people did with it, so you wouldn't need to register your copyright in order to sue.
On Fri, May 30, 2008 at 6:50 PM, Arthur Pemberton pemboa@gmail.com wrote:
How? What if you make something and don't copyright it, and then someone else makes it after you and does copyright it?
Besides, you can't "not copyright it". With exception to works for hire by the government, it JUST IS copyrighted, instantaneously, at the moment it was made. Today this is sufficient to go and sue someone if they make it after you. After the new law passes, you will have to put a modicum of effort into asserting your copyright before you can sue people for infringing upon it.
Then you forfeit damages on your work by not registering its copyright. The same thing goes today, right now, if you don't establish evidence of your work at a given time, and someone else establishes theirs first. This just shifts the liability; from the second guy being responsible for knowing everything that is copyrighted in a world where copyright is automatic and secret, making the second guy's job, literally, impossible; to the first guy, who intrinsically *does* and *will absolutely* know about his work (because he made it) to stake a public claim to copyright *before* they can sue anyone.
Without this public registry of copyright, you can be penalized for things you had no way of knowing. Do you think secret laws would be OK too? Want to spend some time in prison for contradicting me? (It's illegal according to that secret law that you didn't know about because it wasn't publicly registered.) Sounds obviously like a bad idea.
It helps anyone who wants to make and distribute a work, by giving them a mechanism to efficiently look up whether it would violate copyright to do so before expending time and money on it.
On Fri, May 30, 2008 at 11:25 PM, Jeffrey Watts jeffrey.w.watts@gmail.com wrote:
What happened to asking?
How would you ever know how to ask without the work being registered? Personally, I'd like to see some sort of universal meta-data tag and format to express license terms in a machine readable/processable format. (Note I didn't say machine-enforced.) You'd transmit a facsimile to the registrar, they'd hash it, and issue a certificate of the hash, date submitted, who submitted it, and the license terms. You'd stick it onto the file like an id3 tag so others would get a copy of the info with the file, and be able to verify it against the registrar. Then there would be a centralized record of when the work was created, and by whom.
It could be made very painless and easy, and essentially cost next to nothing for electronic items. It could be on the right-click, context menu. For physical items it might require a digital photograph. Big deal.
their needs are trumpted by the needs of the artist's.
The artists' need to distribute works with unclear origination and licensing terms, and sue people for not understanding them? Is that the need of which you write?
It's called an "analogy", and it's a rhetorical tool used to make a point.
I very much appreciate analogies. However, I was pointing out how that specific one failed. <Section A> Theft is theft because something is lost. Theft is a transaction between two parties whereby property is transferred from the victim to the thief, depriving the victim of said property, leaving the victim's hands emptier than they were before. If someone takes your wallet, that is theft. Even outright piracy does not do that. If someone holds $50 in front of you, but doesn't give it to you, that is not theft. While profiting from someone else' orphaned work isn't exactly the classiest thing to do, it doesn't cost the orphaned work's original author anything. Furthermore, most of the frivolous copyright lawsuits today can claim damages without the infringer having profited at all.
On Fri, May 30, 2008 at 11:44 PM, Leo Mauler webgiant@yahoo.com wrote:
Is it just me, or are we veering on-topic again, with Mr. Crook arguing dangerously close to the concept that GPLing something should require a fee and, if the "licensing registry fee" isn't paid, anyone should be allowed to use what they like from the source code in the supposedly GPLed project?
No. I'm arguing that clogging up the court system shouldn't cost tax payers. It should cost the people who are profiting from it. This will only discourage greedy copyright owners from abusing the court system at the expense of you and me, 20 years down the road to get money they didn't earn when they had the chance. That seems a lot more fair from where I stand. It's all about money. Copyright itself won't change much.
This is a really big deal. Right now, nearly everything is copyrighted. Every work, no matter how insignificant, is copyright it's author the moment it is created, unless its author is the government, and that lasts the lifetime of the author plus 70 years or up to 120 years from the date of authorship. If you don't make your work known for some long period of time, or don't make it clear what the terms are and make it obvious who the copyright holder is, you are creating a mess for others.
Humanity is an amalgam of intellectual property. Before you lay claim to something you "created", consider if you really did "create" anything, or merely re-assembled existing ideas and concepts. I'm sure you wouldn't want to have to track down each of their authors to ask permission. And if one of those authors made it impossible to ask them permission, they forfeit their claim for damages for the betterment of mankind.
Because this is exactly where I see laws like this headed, towards people not being allowed to control their own creations unless they pay some private business for the privilege. How, exactly, is this different from paying Microsoft for the privilege of being able to use a computer to write a novel or design some graphics? EULAs are where they got the language for the "Orphan Works Act of 2008" acts currently in Congress.
F.U.D.
On Fri, May 30, 2008 at 11:49 PM, Leo Mauler webgiant@yahoo.com wrote:
Are you seriously sitting there claiming that there aren't any damages to you for someone else getting your paycheck after you've done all the work?
I tire of explaining this. See <Section A> above. Having done work does not, in and of itself, entitle you to money. You *earn* money by providing goods and services to people or otherwise fulfilling contracts with them. *Earning*... That's still word in America, right? In fact, "paycheck" implies your work was a work for hire (thus you are not the copyright holder anyway).
The open source developers, or so I've heard one GPL developer put it, trade their effort to you in exchange for you not selling their "free" product for the money they could have made selling their own product. Their lost income is by choice, in exchange for you not getting their income instead of them.
That developer should re-read the GPL I suppose. The GPL does not forbid anyone's sale (royalty free redistribution for profit) of their works.
On Fri, May 30, 2008 at 11:57 PM, Leo Mauler webgiant@yahoo.com wrote:
--- On Fri, 5/30/08, Jeffrey Watts jeffrey.w.watts@gmail.com wrote: You think you're speaking entirely in jest, but just where do you think some of the "nude body" photos come from which are used in Photoshop to create "Jennifer Aniston...Naked!!!"?
... a humorous example to be sure, but this does actually demonstrate the point of the OWA2008. If you post some picture to the Intertubes you either intend to profit from it, or you do not.
If you did, then it is your responsibility to convey that wish and contact information along with the picture. Today this is just implied by common sense or morals if you believe in them. If you did not, then you can't go claiming you "lost profit" or worse yet "someone stole from you" when they profited from a work that you yourself didn't plan to 'cash in' on.
This legislation will put the moral/common sense into actual law. It's kind of sad that it has to be written down in law, but that's the world we live in. Legally, I hold copyright to this email by the time it hits your Inbox. If you forward it on to anyone without acquiring license from me to do so, you have infringed on my copyright, and I can sue you for "damages". Morally, that's repugnant. But people not only do things like that, but tie up the courts and tax money in the process. The new law will remove the "damages" incentive to abuse the system. Morally, that's a crock of shit. Unless
At various times up to and including May 31, 2008 many people wrote:
Many things that I have snipped.
There appears to be a serious misunderstanding of the difference between copyrights and patents. If I implement an idea and it is found to be sufficiently similiar to a pre-existing patent, then I am in violation of that patent even if I am unware of its existence. If I create a work that is found to be similar to a pre-existing copyrighted work, my ignorance of that work is a perfect defense, as I am not violating the other creator's copyright even if my created work is found to be identical.
Now as to the GPL issue, the only mechanism that I can use to prevent another party from distributing my GPL covered work, is via the method of asserting my copyright against that party. Without the mechanism of copyright, I have no other avenue to compel their compliance with the terms of the GPL.
Thanks, -- Hal
--- On Sat, 5/31/08, Hal Duston hald@kc.rr.com wrote:
I suspect that your hypothesis here isn't accurate. If "my ignorance of that other work is a perfect defense...even if my created work is found to be identical", then there is nothing illegal with taking an existing work, erasing all traces of the previous author, making some superficial changes, and then passing off the entire work as my own. Moreover, if there was no penalty for this behavior, I would also be allowed to make money off "my own song single 'Imagine (This)', hauntingly identical to John Lennon's 'Imagine', though mine has the background tuba", despite current copyright law not permitting this behavior.
"Fair Use" is in there so that you can take a *portion* of someone else's work for use in your own work, not take their entire work and claim it as your own. Collage artists and sampling DJs walk a fine line with current copyright law.
On Sat, May 31, 2008 at 09:02:43PM -0700, Leo Mauler wrote:
That is not my hypothesis, but rather the actual law as it currently stands. The examples you provide above are all of a party reproducing a second party's copyrighted works. The example I provided did not involve any actual reproduction of a copyrighted work, but rather an independently created work that is not derived from another party's work. That is not and infringing act under copyright law. This is a one of the key differences between copyright law and patent law. Patents protect a specific implementation of an idea, or concept. A work infringes the patent of it is described by that patent regardless of the creator's knowledge or awareness of that patent. A copyright protects a particular expression of an idea or concept. If another author INDEPENDENTLY creates a second work that happens to be identical, the fact of that independence causes the work to be non-infringing. Again this is not my hypothesis, but rather what the law actually says. Again, since there is no copying taking place there is no copyright violation.
http://www.quizlaw.com/copyrights/is_independent_creation_a_defe.php
Thanks, -- Hal
--- On Sat, 5/31/08, Hal Duston hald@kc.rr.com wrote:
The exact phrase you used (emphasis added by me) was "I am not violating the other creator's copyright even if my created work is found to be *identical*." I would then ask how one could prove that *any* copy near enough to be "identical" wasn't "an independently produced work", if being "identical" isn't enough to prove that copyright infringement occurred.
By your reasoning if I made an *identical* reproduction of a current artist's work, with my own signature on it instead, then I am not violating the other creator's copyright even though my created work is found to be *identical*, because I claim that my work is an independently-created work and also claim that I never saw the other work I allegedly copied.
On Sat, May 31, 2008 at 10:29:18PM -0700, Leo Mauler wrote:
If it is a reproduction, then it is a copy and is therefore a derived work copyright law and is possibly an infringing work as it is not an independently created work.
This is not a hypothetical situation but rather clearly settled caselaw.
"To constitute an infringement under the Act there must be substantial similarity between the infringing work and the work copyrighted; and that similarity MUST HAVE BEEN CAUSED BY THE DEFENDANT'S HAVING COPIED THE COPYRIGHT HOLDER'S CREATION. The protection is thus against copying -- not against any possible infringement caused when an independently created work coincidentally duplicates copyrighted material. Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936)."
emphasis mine.
Thanks, -- Hal
#include <stdio.h>
int main(int argc, char **argv) { puts("Hello world!"); }
---
I just wrote this small program. It is sufficiently complex (IMO) to qualify for automatic copyright protection. I wrote it from scratch, so that copyright is mine.
I am entirely sure that this exact code has been written by many others many times in the past. I may have even looked at their code. However, because I just wrote *this* program from scratch and without copying or even consulting someone else's, I hold the copyright to it. On the same matter, I am also not infringing on anyone else's copyright.
Whether I can prove this in court or not is an unrelated question. If sued over this particular piece of code, no doubt I could call many witnesses from the industry who would state that the code could very probably be an original work of mine and not copied. While this might not be the case for most code, it could very well be claimed for code which has only one possible or reasonable implementation, such as certain parts of device drivers or workarounds for bugs.
On Sunday 01 June 2008, Leo Mauler wrote:
If you could prove you created 'Imagine (This)' without any foreknowledge of John Lennon's, then you would not be found to have violated contract. Since this is not criminal court, you don't have the "innocent until proven guilty" rule, and the similarities would testify to the fact that you most likely *had* knowledge of Lennon's song. From here, you would need to prove otherwise. Once you've done that, your song is yours.
To drag out a dead horse for a fresh clubbing, this came my way via RSS, and I thought I'd share: http://www.eff.org/deeplinks/2008/07/a-real-life-orphan-works-dilemma
This from the EFF, no less.
The Orphaned Works Act would *make* the copyright owner money. It's only a win-win for rights holders, and fixes one way current copyright law can stifle innovation and commerce.
--- On Mon, 7/7/08, Billy Crook billycrook@gmail.com wrote:
There is an interesting little detail about the "Orphan Works Act" which apparently the guy I got the story from, and even this EFF guy, failed to notice in the original bill: the "Orphan Works Act" doesn't really change anything if the copyright holder sues the infringer and the infringer won't pay the copyright holder what the copyright holder wants for the copyrighted object.
What is the problem? That an unknown status of a copyrighted object limits its use in derivative works because the copyright holder might pop up and bring a civil action against the derivative work maker which excessively harms the derivative work maker, despite attempts by the derivative work maker to locate the copyright holder.
This still exists even if the Orphan Works Act is implemented. One part of the bill's text (Section 2, Sec. 514, (b) Conditions for Eligibility-, (1) CONDITIONS- (A) IN GENERAL) seems to imply that civil cases will be limited to nothing more than the "reasonable fee" if the infringer makes an earnest attempt to locate the copyright holder. However, in "(B) EXCEPTION-", located immediately below (A), we learn that if the copyright holder refuses all the offers as inadequate, the civil suit proceeds.
Which means that civil suits aren't actually prevented if the copyright holder wants more than the infringer feels is a "reasonable fee".
Which means that even if the derivative work makers make a good faith attempt to find the copyright holder(s), they can still be sued for full damages.
Which is the problem everyone says the "Orphan Works Act" will solve, except that it doesn't solve that problem.
The aforementioned subparagraph (c) does limit all lawsuits against non-profit organizations such as libraries, educational institutions, archives, and public broadcasting entities, provided the infringement was performed without any purpose of direct or indirect commercial advantage, was primarily educational, religious, or charitable in nature, and was STOPPED after the copyright holder informed the body in question that infringement was occurring. Otherwise, the lawsuit can proceed. Again, this is continuing the old system: non-profits can't use copyrighted works without paying copyright fees to the copyright holder.
Which means that the "Orphan Works Act" doesn't fix the problem people are saying it will fix.
On Sat, May 31, 2008 at 5:23 AM, Billy Crook billycrook@gmail.com wrote:
So, after this law, what would be the correct way to protect my free code from some big company making money on it?
On Sat, May 31, 2008 at 1:28 PM, Arthur Pemberton pemboa@gmail.com wrote:
So, after this law, what would be the correct way to protect my free code from some big company making money on it?
Let's dissect that: "protect my free code" Is it under attack? "from some big company making money on it" Oh, I see. If someone else makes money, your code disappears from your hard drive, or gets corrupted. No, wait. It doesn't. How does someone else' good fortune hurt you? Is it not selfish to take that away from others for no reason?
FREE SOFTWARE, by definition, welcomes anyone to make money on it so long as they pass down the same rights to their customers as well. That's one of the most important things about free software. Without few companies could ever have adopted GNU/Linux.
If you'd like to prevent your code from being of any financial use to anyone else, the "best" thing you can do is not distribute it. Second to that, you can use a destructive license like one of the non-commercial creative commons licenses. I fail however, to see what good comes of specifically spiting commercial use.
On Sat, May 31, 2008 at 4:33 PM, Billy Crook billycrook@gmail.com wrote:
I have no problem with my code being of financial use to others. What I would have a problem is for company A to take my code and modify and distribute it , and not return the enhancements.
Currently, I can have that by choosing an appropriate license for free. But now it seems that I would have to pay to do this.
On Sat, May 31, 2008 at 4:37 PM, Jeffrey Watts jeffrey.w.watts@gmail.com wrote:
I don't particularly care for megacorps. However, I'm not blinded by the word corporation into thinking that corporations are automatically the bad guys.
B) hippie beatniks that shouldn't care if their work is stolen and profited from.
Stolen? Careful with that word. I don't think you're using it accurately. Profited from? If they're not *doing* anything with it, then no, they shouldn't care. That would be selfish. If your work can help others without hurting you, and you don't want others to benefit, that is both selfish, and destructive. Copyright law wasn't created to be a destructive force, but a constructive one.
Slippery slope defenses have been abused throughout history. I don't expect it to stop any time soon, but they're still invalid.
I don't know Leo or his wife personally. I'm sure they're wonderful people, but I'd rather not make this a personal issue. Someone "being an artist" does not, in any way, entitle them to money. Money is earned by selling things or fulfilling contracts. If someone can't make enough money to live on selling art, then perhaps, that market is over-saturated in their area, or they just aren't as good at it as others with which they compete. Either way it would stand to reason they should pursue other employment.
On Sat, May 31, 2008 at 4:40 PM, Arthur Pemberton pemboa@gmail.com wrote:
Then the GPL is not for you because it does not requite the enhancements be returned to the original author, only to the recipients of the derivative work.
Currently, I can have that by choosing an appropriate license for free. But now it seems that I would have to pay to do this.
Don't panic(TM) and stop fixating on "pay". This will never interfere with how one licenses their work, or their ability to do so. You will only have to register your copyright if you intend do sue infringers for damages. If you don't intend to make money off of it to begin with, nobody can cause damages by reusing it.
On Sat, May 31, 2008 at 5:23 AM, Billy Crook billycrook@gmail.com wrote:
You're right Billy, but I think you have the wrong solution. Since we're talking about drastic solutions for common problems, let's just outlaw the creation of paintings, music, sculpture, pottery, etc. Clearly all of this "artistic" stuff is just clogging up the legal system and giving you a conniption fit (being sarcastic here).
I'm sorry Billy, but it's clear that either 1) you're totally unreasonably crazy or 2) you're talking about something completely different here, and failing to acknowledge that what we've brought up is a valid concern. I'm hoping it's the latter.
You're talking about art like it's a patent, which is a completely different thing. We're talking about the impact on people who make paintings and music, and you seem to be talking about someone who is designing a logo. I totally get that there can be, at times, a problem with someone who says "hey! I made a sign that looks like that McDonald's poster five years ago!".
But we're all talking about the impact of this bill on small artists. You completely disregard the valid concerns, and talk about those small artists as if they're either A) assholes looking to extort money from poor, hard working megacorporations or B) hippie beatniks that shouldn't care if their work is stolen and profited from. Sure, your concern is on _likenesses_, not actual pixel by pixel (or note for note) copies, but don't you see that it's a slippery slope?
I find it funny that you completely dismiss the opinions of Leo, whose wife apparently is an artist, and thus directly impacted. What do you do Billy? I'll freely admit that I'm not an artist - my concerns have more to do with the slippery slope and the possibility that this kind of legislation might work its way on over to software.
This bill strikes me to be a very large hammer to pound a very small nail.... Don't be surprised if a lot of thumbs get smashed by it (that's another analogy).
Jeffrey.
On Sat, May 31, 2008 at 5:23 AM, Billy Crook billycrook@gmail.com wrote:
This is where you lose any and all right to speak on this topic. Your gross characterization of artists and authors as "greedy" and your obviously myopic view that something like the BSD license is applicable to an oil painting on canvas, or a poem written on paper, show that you have no comprehension of what you speak.
On Sat, May 31, 2008 at 8:06 PM, Christofer C. Bell christofer.c.bell@gmail.com wrote:
This is where you lose any and all right to speak on this topic. Your gross characterization of artists and authors as "greedy"
My oh my, you should read before you respond to something in haste. I specified greedy when I did because I wasn't talking about all artists at those times, just the greedy ones.
and your obviously myopic view that something like the BSD license is applicable to an oil painting on canvas, or a poem written on paper,
You, Chris, are making this more complicated than it has to be. My view was very much in focus. If you put on your glasses and read what Arthur wrote, he was the one implying he'd license it under GPL or BSD. Thatpretty well implies it is not an oil painting or poem, but software in the case about which I was speaking.
I think the problem is with the concept of owning ideas.
That is about as clearly put as it can get. Thank you.
On Sat, May 31, 2008 at 8:17 PM, Arthur Pemberton pemboa@gmail.com wrote:
I think the problem is with the concept of owning ideas.
On Friday 30 May 2008, Billy Crook wrote:
While I'm no fan of copyright law, this is FUD and can never happen with copyrights. Copyrights only deal with copying information. If you spent hundreds of hours working on it, and didn't copy it, copyright cannot get in your way.
Basically, it is impossible to copy something (violating copyright) if you don't know it exists.
--- On Sat, 5/31/08, Luke -Jr luke@dashjr.org wrote:
And the "Orphan Works Act" deals only with *known* artwork. You *know* the artwork exists. *You know you didn't create it.* The "Orphan Works Act" isn't desired by creators, it is desired by people who haven't created anything wanting to profit off other people's creations.
Billy Crook is clearly talking about *patents*, not copyrights, in his paragraph above.
-
Arthur Pemberton -
Billy Crook -
Christofer C. Bell -
Chuck -
David Nicol -
Hal Duston -
Jeffrey Watts -
Joe Fish -
Leo Mauler -
Luke -Jr