Re: Re: will everyone concerned about copyright please read this

On Thu, September 22, 2011 4:34 am, joseph harris wrote:

 > On 22/09/2011 04:29, Lee Passey wrote:

[snip]

>> Ahh, but luckily I live in the United States, so I don't have to worry
>> about Berne. In the Berne Convention Implementation Act of 1988 the U.S.
>> Congress declared that the Berne treaty was not self-implementing, and
>> that they deemed the provisions of that act to completely satisfy the
>> demands of the treaty. So long as I satisfy the requirements of U.S.
>> law, I'm golden. If citizens of other countries don't like our laws,
>> that's their problem, not mine.
>
> You are factually wrong. Since 1960 US copyright laws have been brought
> more or less into line with Berne; Wikipedia gives decent overviews, and
> there is plenty on it elsewhere.

You are factually wrong. Until 1978 U.S. copyright laws have been 
greatly at odds with the demands of the Berne convention. (I say 1978 
because that was the effective date of the 1976 act.) The two most 
glaring examples are in the area of formalities and term.

Pre-1978, copyright was not automatically granted to works of 
authorship; an author had to affirmatively assert an intention to claim 
a copyright, usually by affixing the copyright symbol or the word 
"copyright", the name of the copyright claimant, and the date of 
publication to the title page of the publication. If a work was 
published without that notification requirement satisfied, the work 
immediately entered the public domain (or perhaps more accurately was 
not withdrawn from the public domain by its author).

Pre-1978 copyright was granted for a fixed term based upon the date of 
first publication (the fixing of which did cause a certain amount of 
litigation). From the very first publication, there was no question as 
to when a publication would enter the public domain. An individual or 
company could obtain a copy of a work and know at a glance if, or when, 
the work would have satisfied its copyright term.

Both of these features of pre-Berne copyright were designed to serve the 
public-at-large, not the private interest of copyright holders, by 
providing notice, certainty and helping to avoid "innocent" 
infringement. (For a good overview of the treatment of innocent or 
non-threatening copyright infringement in U.S. law pre-Berne, see 
Anthony R. Reese "Innocent Infringement in U.S. Copyright Law: A 
History." _Columbia Journal of Law & the Arts_, Vol. 30, No. 2, 2007," 
available online at 
http://www.law.uci.edu/pdf/treese/reese_innocent_infringement.pdf.)

The fixed copyright term also leveled the field amongst artists. Every 
author got 28 (or 56) years to exploit their work. Under the Berne 
protocol, F. Scott Fitzgerald's novel _Tender is the Night_, published 
in 1934, entered the public domain in 1990 in Canada and Australia, but 
Irving Berlin's ballad "What'll I Do?", published 10 years before in 
1924, won't enter the public domain in those same countries until 2039 
-- a term almost 60 years longer.

In fact, the only way I see that U.S. copyright law had been drifting 
towards the Berne convention was in the regular expansive interpretation 
of the constitutional term "limited" -- a process that began in 1831, 
long before the Berne convention.

> As an example of grabbing the spirit of
> Berne and running with it is the Bono extension of term to life plus 70
> years. A very big change from the pre-1978 position. That last was on a
> long trail from short periods renewable once and only by registrations.

I don't believe that the Mickey Mouse Copyright Extension Act of 1998 
can be significantly attributed to the "spirit" of the Berne convention 
(it certainly cannot be attributed to the letter of the Berne 
convention, as that only requires a copyright term of life + 50). In my 
admittedly subjective view, any appeal to copyright law in Europe (which 
was referenced, although the Berne convention itelf was given only 
passing notice), was much more a rationale than a reason. I see it more 
as an ongoing attempt by the "copyright rich" to benefit at the expense 
of the "copyright poor", this time with the powerful backing of the Walt 
Disney corporation, whose copyright on "Steamboat Willy" was about to 
expire. (I first became familiar with the terms "copyright rich" and 
"copyright poor" from Siva Vaidhyanathan's book _Copyrights and 
Copywrongs: The Rise of Intellectual Property and How It Threatens 
Creativity_, NYU Press, 2001. Mr. Vaidhyanathan is a cultural historian 
and media scholar, and is currently a professor of Media Studies and Law 
at the University of Virginia.)

> US law already accepts the fundamental of Queen Anne and Berne -
> automatic copyright to the creator; that was a major change.

Factually wrong again. In the 16th century the Stationers' Company was 
given the power to require all lawfully printed books to be entered into 
its register. The Statute of Anne (1709) left in place that system of 
registration, required that all works protected by the statute be 
registered with the Company of Stationers prior to publication, and 
required that three copies of every book be deposited for the King's 
Library, as well as those at Oxford and Cambridge. These requirements 
enabled users to locate the owners of copyrighted works, and ensured 
that there was public access to copyrighted works.

In 1774, the House of Lords, sitting as the court of last resort in 
England held, in the case of _Donaldson v. Beckett_, that there was no 
common law right to copyright, and that it was purely a creature of 
legislation. Thus, copyright did not come into being until the 
legislative requirements were met, and the scope of rights and 
responsiblities was exclusively defined by parliment. Absent 
legislation, there was no "natural" right to copyright.

The provisions of the Statute of Anne appear to be directly at odds with 
the terms of the Berne convention, which draws its core from the 
continental traditions of /droits moral/ and /droits d'auteur/. It seems 
to me that U.S. Pre-Berne copyright law had remained much more faithful 
to the goals and terms of the Statue of Anne than any Berne-compliant 
statute (or current U.S. copyright law.

> Your contempt for other countries is alarming. But again you are wrong;
> the copyright law of other countries, for works covered by those laws,
> is recognised in the United States.

I have no contempt for the laws of other countries in general; my 
contempt is restricted to this law in particular -- not because it is 
the law of some other country, but simply because it is a bad law. And I 
see no need for the United States to adopt bad law simply because it is 
common in foreign countries.

Your assertion that the United States "recognizes" foreign law is not so 
much patently wrong, as it is over-simplified as to the point as to be 
effectively wrong. You may be referring to the "rule of the shorter 
term," which is applicable among members of the European Union, but is 
not recognized under United States law. There are whole courses in law 
school dedicated to "conflicts of law," which attempt to resolve the 
issues of which law applies when. As to straight, up-front copyright 
violation, a U.S. court will apply U.S. law to any action for copyright 
violation. There are times, especially in Admiralty cases when there are 
collateral issues which essentially ask the question "what would a 
foreign court, applying foreign law, decide in this case." Those times 
are extremely rare, and highly nuanced; for all intents and purposes you 
can say that a U.S. court will always apply U.S. law exclusively. /See 
generally/ William Patry, "Choice of Law and International Copyright", 
48 Am. J. Comp. L. 383, _American Journal of Comparative Law_, (2000), 
available online at 
http://web.archive.org/web/20060216051756/http://www.geocities.com/williampatry875/Law_Review.pdf

Note that this rule can cut both ways. Assume you have a book originally 
published in Australia or Canada which is not protected in their life+50 
regime but would be protected in a life+70 regime. If you download that 
book in the United States from Project Gutenberg Canada, or Project 
Gutenberg Australia, you would still have violated U.S. law.

> I think in the past couple of years registration became no longer necessary
> in order to sue for breach for non-US works.

In the 1909 Act non-registration was no longer a bar to the 
establishment of copyright; however registration was still required to 
bring a federal action (at this time there were actually a handful of 
state copyright statutes which provided separate action for copyright 
infringement; the requirements for those actions varied from state to 
state). This was not seen as a major impediment, because the 
registration could come any time before bring suit, even as little as a 
single day. You registered and then you file, no big deal.

The 1976 Act preempted all state copyright laws, but continued the 
practice of requiring registration before an action can proceed.

The 1988 Act provided for the assessment of statutory damages as an 
alternative to actual damages in those cases where actual damages were 
speculative or difficult to prove. Registration is no longer a 
prerequisite to a lawsuit, but it /is/ a prerequisite to the award of 
statutory damages. In fact, neither statutory damages nor attorneys' 
fees are not available for any infringement which occurs prior to the 
effective date of the registration.

Copyright registration in the United States continues to be available 
and encouraged.

> And, are any conventions or treaties 'self-implementing'? They all have
> to be subjected to the normal legislative processes of a nation. The
> minimum terms of Berne have been more than met.

<blockquote>
In sum, while treaties "may comprise international commitments . . . 
they are not domestic law unless Congress has either enacted 
implementing statutes or the treaty itself conveys an intention that it 
be 'self-executing' and is ratified on these terms."
<cite>"Medellín v. Texas", 552 U.S. 491 (2008), /quoting/ "Igartúa-De La 
Rosa v. United States", 417 F. 3d 145, 150 (CA1 2005) (en banc)</cite>
</blockquote>

In dictum, the Supreme Court went on to explain:

<blockquote>
The label "self-executing" has on occasion been used to convey different 
meanings. What we mean by "self-executing" is that the treaty has 
automatic domestic effect as federal law upon ratification. Conversely, 
a "non-self-executing" treaty does not by itself give rise to 
domestically enforceable federal law. Whether such a treaty has domestic 
effect depends upon implementing legislation passed by Congress.
</blockquote>

In other words, a "self-executing" treaty becomes law of the land, 
according to its terms, immediately upon ratification. A 
"non-self-executing" treaty /never/ becomes the law of the land, except 
as it is expressed through legislation of the ratifying country. I could 
not immediately lay my hands on an example of a self-executing treaty, 
but I believe the Geneva convention is one.

The best example of a "non-self-executing" treaty is the Berne 
Convention itself, which is binding on people of the United States only 
to the extent that it is expressed in law. Indeed, section 104 of the 
U.S. copyright law (Title 17, USC) provides:

<blockquote>
(c) Effect of Berne Convention.-- No right or interest in a work 
eligible for protection under this title may be claimed by virtue of, or 
in reliance upon, the provisions of the Berne Convention, or the 
adherence of the United States thereto. Any rights in a work eligible 
for protection under this title that derive from this title, other 
Federal or State statutes, or the common law, shall not be expanded or 
reduced by virtue of, or in reliance upon, the provisions of the Berne 
Convention, or the adherence of the United States thereto.
</blockquote>

You see, not only is the Berne convention irrelevant in U.S. law, our 
statutory law requires that we /ignore/ its provisions.

>>> I agree that a sequel would hardly be a derivative work if it was the
>>> product of the same author. Fan fiction is, however, breach of
>>> copyright;
>>>
>> A conclusion unsupported by evidence, and therefore inadmissable. Can
>> you point me to a United States court decision that supports that assertion?
>
> Er... If it hasn't been to court there can be no court decision. If, in
> twenty odd years, and in a litigious country, it has not been challenged
> that may be because it is open and shut.

Maybe there is such a case, and I'm simply unaware of it. Or you may be 
right: no one has brought a lawsuit against fan fiction because they 
recognize that it would be open and shut and they would lose. Or maybe 
they figure that they don't /want/ a decision on this issue, because the 
implied threat of a lawsuit is much more intimidating when the outcome 
is uncertain.

The only case I'm aware of that is close to this is Suntrust v. Houghton 
Mifflin, 268 F.3d 1257, in which the estate of Magaret Mitchell sued 
Alice Randall over _The Wind Done Gone_, a retelling of the story of 
_Gone With the Wind_ through the eyes of the slave Cynara. The Eleventh 
Circuit Court of Appeals vacated an injunction against its publication, 
after which the case was settled by an unspecified donation by Houghton 
Mifflin to Morehouse College. The 11th Circuit Court relied on the U.S. 
Supreme Court's decision in Campbell v. Acuff-Rose Music, Inc, 510 U.S. 
569, and it appears likely that Ms. Randall would have also prevailed in 
the Supreme Court.

>>> It is a pity that the US clung to registration, especially as
>>> it tied the right to go to court and a timely condition on damages to
>>> that registration.
>>>
>> It's a pity that the U.S. had to give up registration just to comply
>> with Berne, as the U.S. courts, in a long line of cases, have uniformly
>> praised registration and notification requirements as part of the
>> balance between the rights of copyright holders and the rights of
>> copyright consumers. Non-registration and non-notification seem to me to
>> be a recipe for either anarchy or tyranny.
>>
>
> ER... The US has not given up registration; were you intending something
> different?

Registration in the U.S. is not a prerequisite to the establishment of a 
copyright, neither is it a prerequisite to recovering damages for 
infringement, and has not been since 1909. It is only a prerequisite to 
an award of statutory damages or attorney's fees. I suspect this latter 
was carved out in the law as the U.S. Congress recognized the obvious 
value of a nation-wide system of registration and it was felt that 
/some/ incentive was necessary to encourage copyright holders to 
register their interests in any otherwise optional registry.

> And not all works are registered; it is a very fallible
> system, and restrictive of free trading.

Yes, a registration system does not work well if a substantial portion 
of copyright holders fail to take advantage of the system; that's why a 
registration system should be mandatory. And a mandatory registration 
system would foster more free trading as it would add certainty in 
determining exactly what you're trading for.

[snip]

>>> The real goal of writers is to receive decent payment for their efforts,
>>> without having to bow to any form of patronage.
>>
>> Well, you don't always get what you want. U.S. law is not designed to
>> assure that writers receive decent payment for their efforts, it's
>> designed to give writers the incentive to continue producing by offering
>> them a limited, artificial monopoly on publication in the hope that they
>> might be able to exploit it effectively.
>
> You quote the US Constitution, not the laws.

OK, the law says:

<blockquote>
Section 106. Exclusive Rights in Copyrighted Works.

The owner of copyright under this title has the exclusive rights to do 
and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the 
public by sale or other transfer of ownership, or by rental, lease, or 
lending;

(4) in the case of literary, musical, dramatic, and choreographic works, 
pantomimes, and motion pictures and other audiovisual works, to perform 
the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, 
pantomimes, and pictorial, graphic, or sculptural works, including the 
individual images of a motion picture or other audiovisual work, to 
display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work 
publicly by means of a digital audio transmission.
</blockquote>

That's the sum of it. You get the exclusive right to copy and authorize 
copying, to perform and authorize performances. There are other 
provisions, of course, but they mostly serve to restrict these basic 
rights, not expand them. There is no right to receive decent payment for 
efforts, and no indication that that's one of the goals of this 
legislation. Indeed, in _Feist v. Rural Telephone_ (499 U.S. 340 [1991]) 
the U.S. Supreme Court explicitly disavowed the "sweat of the brow" 
doctrine, and did not penalize the defendant even though the facts 
demonstrated not merely "independent discovery" but any actual copying. 
(Note that _Feist_ is one of those rare, unanimous decisions.)

> You also, as did Chris, take my sentence out of context and without due regard
> to its sub-clause. Constitution is about principle; laws are made to deal with
> the situations as they are.

Actually, the U.S. Constitution is not about principle at all, it is 
about the limitation of governmental powers. The philosophical 
underpinnings of the constitution is not due nearly so much to the Magna 
Carta as it is to the charter of Hudson's Bay Company -- but now we're 
getting /really/ far off topic :-).

> Nor did I even say the law was designed for
> that. I referred to the goal of writers. The object of the laws of
> copyright are to give writers a playing field on which it is possible
> for some, at least, to reach that goal.

I believe that that is /your/ goal, and cannot discount the possibility 
that it may have been the goals of some of the legislators who voted for 
the law. I simply cannot find any documentation to that effect. When I 
project my goals and aspirations onto other individuals, I try to use 
such "weasel words" as "presume", "assume", "suspect", "believe", etc. 
I'm not sure I always follow that rule, but I try. Who knows what 
motivates some individual without documentation? I am fairly sure that 
some of my own beliefs and principals are not widely shared, even when 
they should be.

> The possibility actually does fulfill the principle of the 'incentive' of
> the US Constitution.

I agree that the 1909 act did a good job of fulfilling the purposes of 
the Progress clause. Whether the recent additions still fulfill that 
purpose is more of an open question. There are two concerns I have. 1. 
Do the new laws go beyond the minimal governmental intervention in the 
free market that is required to achieve the purpose? In other words, 
does it overreach and thus become a burden on the free market? 2. Does 
it prevent information from freely moving into social discourse, and 
thus hinder "the Progress of Science and useful Arts?" I don't think 
this is a situation where "if some is good, more is better."

>> In the 21st century, the effectiveness of that limited monopoly may no
>> longer be sufficient to prompt writers to write (although there seems to
>> be no shortage of new writers even in this brave new world).
>
> People will write, to some extent. Writers and authors are those who
> move towards, or achieve, a very professional way of writing. Copyright
> covers both because it cannot work otherwise.

I agree, and this belief informs much of my opinion that the current law 
overreaches. The 1909 law was largely sufficient to achieve the 
constitution's purposes. For the most part, I believe that the changes 
which began in 1976 were intended to cater to special interests, and do 
not foster the public good.

>> If so,
>> perhaps some alternative to traditional copyright may need to be enacted
>> (although I cannot support further criminalizing infringement, and
>> pressing unsuspecting third parties into service as gendarmes). I
>> suspect that there is no shortage of creators who would gladly give up
>> copyright for /any/ form of reliable patronage. Maybe we need some sort
>> of social safety net where taxes are used to subsidize authors. But I
>> don't support inventing some new sort of property right so authors can
>> claim that a story is just like a car.
>
> That's a mish-mash Lee! As an attempt at bypassing past discussions to
> early foot-stamping it works :-) . Restate it in unemotional and
> reasonably logical terms and I'll respond.

It is indeed a mish mash :-). But I don't think I'll get any deeper into 
it in this forum. Back when Jon Noring moderated this list posts which 
were exclusively about copyright were politely but firmly "discouraged." 
This was perfectly understandable, of course, as this list was designed 
to discuss e-books, and issues of copyright are mostly orthogonal to the 
issues of e-books. (They are related, but mutually independent and 
well-separated). If your primary interest is copyright, there are many 
other forums to discuss those issues, where the content is more 
relevant, and accurate, than the ill-informed opinions generally 
expressed here.

Now I /do/ think there is an area of appropriate intersection between 
e-books and copyright. Indeed, I think that e-books specifically and the 
internet generally will eventually kill copyright as we know it. So I 
may engage on those issues in the future in that context. But as for 
pure copyright issues I think I've said my peace, and I'm going to defer 
the remainder to other, better forums.

... At least for a few months until another clueless individual comes 
along to claim "my story is my God-given property, and copyright 
infringement is theft." Sometimes I just can't keep my mouth shut, even 
when I should.


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