Absolute must-read in the copyright wars

[DawnFalcon]

Yes, don't be stupid.

If you're sending out unsolicited manuscripts, in some cases you've already forfeited important rights anyway. It's also trivial to break your objection as well - the package or email has "by opening this package/email attachment you agree not to republish or otherwise use this manuscript for anything but evaluation without a further agreement from me" on it. Bong, contract law deals with your objection.

Again, there are uses for copyright, but you are focusing on something which could be handled entirely adequately by contract law. Indeed, in many businesses, it IS handled by contract law... (Non-disclosure agreements!)

[Kali Yuga]

Originally Posted by DawnFalcon

If you're sending out unsolicited manuscripts, in some cases you've already forfeited important rights anyway.

Not if copyright exists. With the current system, you don't even need a formal declaration in order to have your work protected. Once it's created, it's protected.

Originally Posted by DawnFalcon

It's also trivial to break your objection as well - the package or email has "by opening this package/email attachment you agree not to republish or otherwise use this manuscript for anything but evaluation without a further agreement from me" on it. Bong, contract law deals with your objection.

And, if you read my entire post, you'd see how that sets the stage for restrictions that are ten times more powerful than what is stipulated by current copyright law. The author could stipulate via the contract that the artist and their descendants, estate and/or foundation (or the publisher) have control into perpetuity, and that the end-user has no rights to duplicate the content on any basis whatsoever. Bong, fair use is completely eliminated and nothing ever goes into public domain ever again.

I might add that if your contract isn't comprehensive or has any kind of loophole, you are SOL.

The publisher could even establish ridiculously restrictive DRM if they wanted, in order to enforce the contract. They might even be encouraged to do so, since they could no longer rely on copyright laws as a means of protection.

Originally Posted by DawnFalcon

Again, there are uses for copyright, but you are focusing on something which could be handled entirely adequately by contract law. Indeed, in many businesses, it IS handled by contract law... (Non-disclosure agreements!)

Great. So now every time I buy anything I need to sign a contract? How is that any sort of improvement?

I might add that to enforce NDA's, you sue the alleged leaker. So the consumer publishes the contract-restricted content on a P2P site, and the publisher sues for violating the contract. No change there -- or possibly worse, since the contract could stipulate even more outrageous penalties than current laws.

And again: Just because your work is automatically protected via copyright, there is absolutely no requirement whatsoever with the current system for a creator to place any restrictions whatsoever on their works. If you want to record a song, make it into an MP3, and allow anyone in the world at any time to copy it or use it in any context (commercial or non-commercial), that is absolutely allowed. In fact, to the best of my knowledge you could even use your status as the copyright holder to prevent someone from stealing your work, taking credit for it and charging for it, if that's your druthers.

Copyright protection, post-Berne, is now both automatic once the content is in a fixed medium, and limited in duration. Contracts are not automatic, are not necessarily comprehensive (especially if they aren't prepared properly), could be more punitive, can block fair use (including parodies and academic uses) and have no time limits.

Sounds to me like the contract idea will result in aggravating every complaint I've heard so far about copyright.

[DawnFalcon]

Originally Posted by Kali Yuga

And, if you read my entire post

It's utterly and totally irrelevant to the point. You can (I am not commenting on IF it's a good idea) handle it through contract law. There is simply no way to defend life+decades copyright (the duration!) on the basis that people will use unsolicited manuscripts sent to them!

That's all there is to it.

Customer abuse via DRM is an entirely different topic.

[Kali Yuga]

Originally Posted by DawnFalcon

It's utterly and totally irrelevant to the point.

No, it's pretty much on point. For whatever reason, you are failing to comprehend, and therefore respond to, my argument.

Again:
• Copyright is automatic. Contracts are not; they require an explicit act of consent.
• Copyright is comprehensive. If I fail to specify a certain right in my contract, I may be SOL.
• Copyright protection protects against the proper specific offender. E.g. if some assistant "agrees" to a "tear-through" contract, accidentally hands it over to another producer without your explicit consent, and rips it off, you may never know or be able to prove who violated your contract.
• Copyright duration may be too long, but contracts can be longer. In fact, in the absence of a law saying that "works must eventually go into public domain," there will be no reason why a work ever needs to go into public domain ever again. (Even if the publisher doesn't hold the rights indefinitely, the contract could specify 100 years for the publisher, and then rights return to the creator or his/her estate.)
• A contractual situation will not prevent publishers et al from suing the actions we now call "infringing." They'll just sue people for violating contracts instead of copyright infringement.

Contracts are insufficient to protect a creator's rights; that's why copyright was developed in the first place, and one reason why it not only persists, but has been altered and in some ways enhanced over the years.

[DawnFalcon]

You're trying to defend life+ copyright on the basis of things happening at the very start of the copyright period. Again, I am not advocating use of contract law in that way, I'm saying that it simply makes mincemeat of the argument that you need copyright that long for that reason.

This is bluntly silly. If you want to defend life+ fine, but it sounds very much to me like you cannot come up with any good arguments except "but I think it's a good idea". And bluntly unless you can come up with a good solid argument you're heading for my ignore list for idioticy.

[zerospinboson]

Originally Posted by Kali Yuga

• Copyright duration may be too long, but contracts can be longer. In fact, in the absence of a law saying that "works must eventually go into public domain," there will be no reason why a work ever needs to go into public domain ever again. (Even if the publisher doesn't hold the rights indefinitely, the contract could specify 100 years for the publisher, and then rights return to the creator or his/her estate.)

A very good argument indeed in a world where retroactive copyright extensions are as common as the common cold.

[Kali Yuga]

Originally Posted by DawnFalcon

You're trying to defend life+ copyright on the basis of things happening at the very start of the copyright period.

No, you are misreading my comments. If you go back to post #53 (to which you replied with the contract idea), you'll see that I started off by asking "What about abolishing copyright altogether?" and asking for an alternative that protects a creator's rights. Since then, I've pointed out how and why contract-only scenarios are largely ineffectual at that task, and make several current problems worse.

I.e. copyright duration is a separate aspect and is not what I am discussing. I am defending the general concept of copyright, and pointing out that it helps the individual artist protect their rights (as opposed to a common misperception that it is exclusively designed to screw everyone except big publishers). On that basis, while copyright durations can be modified, it does not make sense to completely abandon the idea of copyright strictly because you believe the duration is too long.

Originally Posted by DawnFalcon

Again, I am not advocating use of contract law in that way, I'm saying that it simply makes mincemeat of the argument that you need copyright that long for that reason.

They are two separate arguments altogether (general copyright vs long copyrights). And yet again, a contract can extend longer than life + 70. So without a separate law requiring works to go into public domain at a certain point in time, contracts fail to meet your goal of reducing the period of time before a work enters PD.

Though I did say that I personally am not particularly bothered by life + 70, I never said that copyright had to be that long, nor has anything I've said -- especially in terms of the contract discussion -- that it ought to be that duration. Nor would I be particularly put out by shortening it to, say, life + 50, or perhaps a long set number of years (75, 100). Considering that an artist can produce a work and drop dead the next day, and his family / estate should have the rights to the work for at least some period of time, copyright periods longer than 60 days make sense.

Further, I don't mind extensions for highly specific situations (e.g. Mickey Mouse), but can't think of a way to design copyright laws that would allow an extension of that sort which can't be widely exploited.

Or, another way to put it is that contracts can be used and abused to the same (if not greater) extent than copyright -- while offering fewer abilities and advantages to the creator of the content.

My point in the "contract" discussion is that contracts are obviously not sufficient to offer the same level of protection, as it isn't automatic and cannot guarantee that anything ever makes it into public domain; and that not only does it fail to fix the duration issue, it actually makes it worse.

Separately, I do not see an alternative to copyright as a general concept. Since contracts cannot replace copyright, looks like you don't have one either....

Originally Posted by zerospinboson

A very good argument indeed in a world where retroactive copyright extensions are as common as the common cold.

It is, if you actually comprehend it. To be explicit yet again: Copyright law requires that at a certain point in time, works go into the public domain. In a contract-only environment, no such law exists. Therefore, publishers could legally write a contract that permanently holds the rights, or the rights could revert to the author at a certain point. I.e. in a contract-only environment, works will never go into public domain unless an individual or organization explicitly chooses to surrender the rights. Plus, companies wouldn't need to lobby Congress for extensions, since they'd have hold perpetual rights via the contracts. Not to mention that you'd have to agree to a contract every single time you buy an object -- a process that would drown us all in legalese. Or, that retailers could design highly restrictive rights, treat all purchases as licenses or leases of limited duration, deny you the legal right to lend or resell works, deny you the ability to parody or quote for fair use, etc.

You could add a law saying "regardless of contracts, works must go into PD after x years." But then you'd have the exact same potential issue of legislatures adding extension after extension, and there is no improvement compared to the current situation.

And the reality is that extensions aren't implemented nearly as frequently as you suggest (or assume). In the US, durations started in 1790 (14 years + 14 year renewal); changes were made in 1831 (28 + 14 renew); 1909 (28 + 28); 1976 (75 or life + 50); 1998 (life + 70 or 95/120 for works for hire). So that's 4 extensions in over 200 years. And tucked in there was adoption of the Berne Convention, which grants copyrights automatically even without filing formal documents.

To put it another way, I do not share your cynicism that copyrights will get an extra 20-year duration, every 20 years, from now until the end of time.

I'm still open to alternatives to copyright or sensible adjustments to current laws, but a contract-only scenario fails to offer any improvements.

[zerospinboson]

Originally Posted by Kali Yuga

It is, if you actually comprehend it. To be explicit yet again: Copyright law requires that at a certain point in time, works go into the public domain. In a contract-only environment, no such law exists. Therefore, publishers could legally write a contract that permanently holds the rights, or the rights could revert to the author at a certain point. I.e. in a contract-only environment, works will never go into public domain unless an individual or organization explicitly chooses to surrender the rights. Plus, companies wouldn't need to lobby Congress for extensions, since they'd have hold perpetual rights via the contracts. Not to mention that you'd have to agree to a contract every single time you buy an object -- a process that would drown us all in legalese. Or, that retailers could design highly restrictive rights, treat all purchases as licenses or leases of limited duration, deny you the legal right to lend or resell works, deny you the ability to parody or quote for fair use, etc.

Is it always hard for you to refrain from trying to insult your peers? Or are you under the impression that it actually advances your argument to do so? If you'll take a hint, it seems a rather ineffective strategy from where I'm standing.
In any case, I'm not sure where you saw me saying I thought contract law offered a viable alternative strategy to copyright law, because I don't believe I ever suggested it. As such, I'm not really sure why you're telling me that contract law would be more restrictive, and as such a bad alternative, because I never argued it should be considered as such.
Yes, contract law wouldn't work, but the conclusion wouldn't be more restrictions, but just a dilution of the effectiveness of contract law, as the amount of infringements would overwhelm any legal system.
To return to the point I made, however, see this:

Now, not all of these term extensions were retroactive, but the 2 most recent (post the invention of recorded-music/movies/TV) were.
Lastly, consider the F/OSS movement: Apparently some people can live with only getting recognition, as well as occasional donations. Now I know (most) authors are a touch more self-important than most F/OSS developers, (and Don Quixote and the Divine Comedy were also written before copyright was invented) so I don't really see the principled argument that teaches us that a world without copyright would not work.
The internet has given all companies enormously expanded potential markets; just as with easier transportation through rail/automobiles, this also meant that they encountered more competition, because regional monopolies became impossible to maintain. Similarly with the internet, it seems very acceptable that the increased reach is accompanied by increased competition (if you define competition as a push to lower prices; this is, after all, the net effect piracy will have in the long term).
Change destroys business models, sure.. but I'm not sure why business models should be considered holy anyway.

[Jaime_Astorga]

Originally Posted by Kali Yuga

It is, if you actually comprehend it. To be explicit yet again: Copyright law requires that at a certain point in time, works go into the public domain. In a contract-only environment, no such law exists. Therefore, publishers could legally write a contract that permanently holds the rights, or the rights could revert to the author at a certain point. I.e. in a contract-only environment, works will never go into public domain unless an individual or organization explicitly chooses to surrender the rights. Plus, companies wouldn't need to lobby Congress for extensions, since they'd have hold perpetual rights via the contracts. Not to mention that you'd have to agree to a contract every single time you buy an object -- a process that would drown us all in legalese. Or, that retailers could design highly restrictive rights, treat all purchases as licenses or leases of limited duration, deny you the legal right to lend or resell works, deny you the ability to parody or quote for fair use, etc.

You could add a law saying "regardless of contracts, works must go into PD after x years." But then you'd have the exact same potential issue of legislatures adding extension after extension, and there is no improvement compared to the current situation.

Contracts are only binding on those who sign them. Without copyright, a company can make whatever deal with an author it likes, but it will still be unable to prevent other people and companies from copying and distributing the author's works and making derivative works based upon it. At worst, the contract would prevent the author from writing anything else.

Now, there ARE ways to try and enforce this kind of scheme without the legal weight of copyright. DRM might be an issue, for example, but that is not at all different from the current situation. And DRM will just continue to be defeated by tech enthusiasts as it previously has been.

[Kolenka]

Originally Posted by zerospinboson

Now I know (most) authors are a touch more self-important than most F/OSS developers, (and Don Quixote and the Divine Comedy were also written before copyright was invented) so I don't really see the principled argument that teaches us that a world without copyright would not work.

Copyright as a concept would live on, even if we abolish the law as it stands. It'd take the form of something else, and could possibly exist in worse form than it stands today.

The reason I believe the other poster brought up contract law is that if you abolish copyright, that is what people will fall onto in order to get protections for their work, as the two already work hand in hand (contracts are used to define what rights a copyright holder gives to someone who holds a copy, with a default 'contract' being built into copyright law, and restrictions on what a non-default contract can have).

There were two sides to copyright law initially: Offer up protections to encourage artists to produce a work knowing they can use it to fund their livelihood. And expire those protections so that the creator cannot use a single work to profit indefinitely, and encourage them to continue producing more while older work goes into the public domain.

The problem we face is that the second aspect of copyright law has gotten diluted and weak after copyright extensions, the DMCA (which is really just a double-dip on copyright infringement in most cases) and other changes to the initial law. As it becomes weaker, it just becomes more like contract law where the contract is already included in the government's books.

We can live without copyright, but we either weaken the protections beyond what copyright set out to do, or we weaken the public domain even further. When we try to balance out these two in some fashion, we get back to really just instituting copyright in another name.

Even the OSS crowd using the GPL uses contract law and copyright together to enforce the 'this stays public' stance on their code. The copyright side of it allows the contract to be transparent to most users who don't write code (it just appears similar to a public domain app or freeware), and don't have to be bogged down by agreeing to the full contract when copyright already specifies the default contract.

[Kolenka]

Originally Posted by Jaime_Astorga

Contracts are only binding on those who sign them. Without copyright, a company can make whatever deal with an author it likes, but it will still be unable to prevent other people and companies from copying and distributing the author's works and making derivative works based upon it. At worst, the contract would prevent the author from writing anything else.

Contract law covers more than just a written contract, but written contracts are usually easier to defend in court (verbal contracts are handled all the time in small claims courts). If the means of accepting the contract are clear and unmistakable (i.e. "Click no to accept these terms" would probably get some scrutiny), and the terms don't require either party to do anything illegal, then there is weight behind it.

The GPL requires this weight of contract law, mixed with the protections of copyright law to work.

[DawnFalcon]

Originally Posted by Kolenka

Contract law covers more than just a written contract, but written contracts are usually easier to defend in court

Under English and Welsh law, unless you're selling a House, then your ability to enforce a valid contract is based on your ability to prove it was entered into, and that there was consideration on both sides*. It's entirely possible to conclude contracts by email, for instance.

(*consideration is not an issue in Scottish law, the rest applies...)

[Kali Yuga]

Originally Posted by zerospinboson

I'm not sure where you saw me saying I thought contract law offered a viable alternative strategy to copyright law, because I don't believe I ever suggested it....

Let's see, how do I put this politely....

Carefully read posts #59, 62, 64 and the first half of 67. Those are responses to DawnFalcon, who is suggesting that you can replace copyright laws with contracts.

Your comment in #66 is a response to #64, in which I pointed out to Dawn that a contract-only environment does not improve or fix the "copyright duration" problem. Your response -- which quotes part of an ongoing discussion about replacing copyright with contracts -- indicated that you were following this debate. In addition, several of my comments in the second half of #67 addressed your suggestion that lobbyists and legislators will continually pile on extension after extension, when that does not in fact match the historical facts.

Your link doesn't work, but I assume it points what I already know: that the 2 modifications to copyright durations were retroactive and resulted in extending existing copyrights. Meanwhile, the reality is that there have only been 4 rounds of extensions in the US over the last 200 years. Ergo, as I pointed out before, it is not justifiable to definitively assert that round after round after round of extensions is inevitable and utterly unavoidable.

Originally Posted by zerospinboson

Lastly, consider the F/OSS movement: Apparently some people can live with only getting recognition, as well as occasional donations.... so I don't really see the principled argument that teaches us that a world without copyright would not work.

Oh? As Kolenka also points out, open software licenses are copyright licenses. Thus, the enforcement of licenses like the GPL are explicitly based on copyright. So if you abolish copyright, you lose your ability to enforce your open license.

You might make the argument that "free software demonstrates that you don't have to charge money for your creative output." And I've stated several times that copyright grants you the option to give your content away for free (without worrying about someone else profiting off of it, unless you somehow put it directly into public domain). However, so far it's proving rather difficult (although far from impossible) to run a viable business with an open source model, even if you start out with that as your explicit goal. Many (if not most) of the big dogs in software are all still proprietary: Microsoft, Apple, Oracle, Adobe, EA, etc.

Now, I will agree to some points, namely:

• cost of producing and distributing some types of content will fall
• "free" options (notably ad-supported and promotional use) will continue, and almost certainly become more common
• some businesses will survive, and possibly flourish, using a more open model than current proprietary businesses

But while you can have dozens of amateur writers cranking out fanfics of various quality in their bedrooms and release it for free, it's still going to cost millions of dollars and require scores of professionals to produce the TV series that is the object of said fan's affection. Or, let's take the archetypal rock band; you've got 4 people who are (hopefully) good at writing and performing songs. But this does not mean they are also good recording engineers, know how to master their recordings properly (let alone well), book shows, do promotion in cities where they don't live, set up the equipment and do the sound at live shows, advertise their recordings, design their album covers and t-shirts and graphics, handle their own accounts and taxes, get their songs on the radio, direct their own videos, make CD's, get the CD's into stores or songs onto iTunes, and so forth. At least, if you want to sell more than 5,000 copies and play in clubs with a max capacity of 100, sooner or later you're going to have to get a lot of people to work on your behalf -- and they can't all afford to work for free.

And most of the "free" options just have other ways of making you pay. Broadcast TV is free, but ad-supported. Do you really want your Harry Potter ebooks to have half-screen ads on every other page? Also, most of the $0.00 Kindle books are set at that price with the intent that if you enjoy that author's work, you will enjoy it enough to subsequently buy other books by that same author.

I.e. there are scores of people, other than the initial creator(s), who are involved in producing and distributing content. Even if it becomes easier for the Lone Genius to produce their works and provide it directly to The Masses, there will always be a need for seasoned professionals who help an artist do their work, and a desire for works more complicated than what one person can produce alone at near-zero costs. You'll still need an orchestra and a chorus to do opera, extras to film movies, marketers to break out of the noise of the masses of free content.... Doing anything more ambitious than a volume of poetry is almost certainly going to require resources and skills far beyond the ability of a single individual to amass.

I.e. even if there is far more free content available in the future, if the quality of said free content rises, and even if today's media titans are destroyed by the technological changes: Paid content, publishers, and other middle-men aren't going to disappear.

[DawnFalcon]

Originally Posted by Kali Yuga

Let's see, how do I put this politely....

Carefully read posts #59, 62, 64 and the first half of 67. Those are responses to DawnFalcon, who is suggesting that you can replace copyright laws with contracts.

NO I AM NOT. I HAVE NOT SUGGESTED SUCH. I have suggested that certain, specific functions you have called copyright law essential can be, and often are, handled by contract law. I have said several times I am not commenting on how good of an idea this is.

Screw this, you're on ignore for blatant rampant stupidity and lying about what I said.

[zerospinboson]

Originally Posted by Kali Yuga

Let's see, how do I put this politely....

Carefully read posts #59, 62, 64 and the first half of 67. Those are responses to DawnFalcon, who is suggesting that you can replace copyright laws with contracts.

Your comment in #66 is a response to #64, in which I pointed out to Dawn that a contract-only environment does not improve or fix the "copyright duration" problem. Your response -- which quotes part of an ongoing discussion about replacing copyright with contracts -- indicated that you were following this debate. In addition, several of my comments in the second half of #67 addressed your suggestion that lobbyists and legislators will continually pile on extension after extension, when that does not in fact match the historical facts.

Your link doesn't work, but I assume it points what I already know: that the 2 modifications to copyright durations were retroactive and resulted in extending existing copyrights. Meanwhile, the reality is that there have only been 4 rounds of extensions in the US over the last 200 years. Ergo, as I pointed out before, it is not justifiable to definitively assert that round after round after round of extensions is inevitable and utterly unavoidable.

..You must've missed the part where I mentioned the advent of Big Media in your zeal to put words into my mouth. Before 1900 pretty much all you had were book publishers; since 1920 the popular newspaper, movie, tv, and recording industries have pretty much exploded onto the scene, and had a huge impact on the cultural and economic landscape. So in times when there was no possibility of recording stuff, there obviously was less of an incentive for companies to push for legislation protecting that work; ever since the possibility is there, all extensions have been retroactive, meaning everything created after 1920 or so is still under copyright. Ergo, your talking about "the past 200 years" is pointless, as in those 200 years, the media landscape has been vastly changed.
To answer your second point: yes, the GPL etc. make use of existing copyright legislation, but only to ensure people can't take stuff from the PD and steal/licence it themselves. If you take away copyright altogether, you surely take away the enforcement mechanism, but you also take away their right to claim it's theirs. So while companies wouldn't be releasing the source alongside the software, they could never claim the software was theirs, and anyone would be allowed to decompile or whatever it.
The point you seem to be missing is that the most problematic point about copyright is the "time-limited monopoly". While publishers etc. would certainly still be able to publish, print and sell books, they would not be able to claim a monopoly on the text, nor claim it can't be distributed online.
You don't need copyright to sell books; why else are publishers still making money off of Jane Austen? Sure, they invent a cover page and say their expression is once again copyrighted, but it's not as though that's the bit that matters. What matters is that they're selling the paper, and people are still buying it.

(Re your silly band example: read those posts by courtney love etc? Bands (not labels, they just claim they aren't) aren't making money off of CD sales anyway, and even tours organized by Sony et al are pretty hard to make money off of when you're financially stupid. Sure they won't be able to do a "big" tour without help, but then, they won't be going bankrupt being ripped off by the RIAA members either. It seems a win-win.)