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Old 06-22-2010, 04:52 PM   #1
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Court Says It's Okay To Remove Content From The Public Domain

From TechDirt:

Warning: this one is depressing if you believe in the public domain. You may recall that last year, a district court made a very important ruling on what appeared to be a minor part of copyright law. The "Golan" case asked a simple question: once something is officially in the public domain, can Congress pull it out and put it back under copyright? The situation came about because of (yet another) trade agreement that pulled certain foreign works out of the public domain. A district court had initially said that this move did not violate the law, but the appeals court sent it back, saying that the lower court had not analyzed the First Amendment issue, and whether this was a case where the inherent conflict between the First Amendment and copyright law went too far to the side of copyright by violating the "traditional contours of copyright law." Getting a second crack at this, the district court got it right -- and was the first court to point out that massively expanded copyright law can, in fact, violate the First Amendment.

But, of course, it couldn't last.

On Monday, the appeals court reversed the lower court's ruling and said there's no problem with the First Amendment because copyright law "addresses a substantial or important governmental interest." This is, plainly speaking, ridiculous. The argument effectively says that the government can violate the basic principles of the First Amendment any time it wants, so long as it shows a "substantial or important government interest." But that makes no sense. The whole point of the First Amendment was to protect citizens' interests against situations where the government's interests went against citizens' interests. It should never make sense to judge a First Amendment claim on whether the government has "substantial or important" interests.........

Relevant Slashdot discussion.
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Old 06-22-2010, 04:57 PM   #2
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wow. depressing and stomach-churning. it's things like this that make me really start to wonder whether we shouldn't start thinking about reforming copyright to the point of actually getting rid of it completely. in theory, i support a shorter copyright term, closer to the original one. but maybe copyright is one of those "give them an inch and they take a mile" cases and there's no way around it getting extended and perverted beyond all reason. history so far certainly seems to support that theory...
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Old 06-22-2010, 05:01 PM   #3
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Just need to find a middle ground. My vote is copyright is the creators lifetime, plus 10-15 years (to encourage late in life work and posthumous publication).

Get rid of copyright and quality will suffer as people produce less since they make less money off it. But the public domain is a good for society and needs to exist, so just a matter of having copyright law that's fair to content creators, but also allows for the public domain to exist.

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Old 06-22-2010, 05:45 PM   #4
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Could there be a way to turn this into an advantage by allowing Congress to pull Mickey out of the public domain while still retaining some sense of reason in copyright terms? If they can just placate the mouse company, maybe they can allow other things to enter into the public domain as they normally would, so that extensions on ALL works are not necessary.

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Old 06-22-2010, 06:00 PM   #5
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Originally Posted by luqmaninbmore View Post
Could there be a way to turn this into an advantage by allowing Congress to pull Mickey out of the public domain while still retaining some sense of reason in copyright terms? If they can just placate the mouse company, maybe they can allow other things to enter into the public domain as they normally would, so that extensions on ALL works are not necessary.

Luqman
Well on that front maybe the laws need to change what public domain means.

Maybe entering the public domain should just mean that that book/movie/tv show/music etc. can be copied and distributed freely.

But not that people can freely use those characters etc. for new products etc.--if that's what the Mickey Mouse case is about.

I'd be ok with that. The public domain should be out free access to old works--not allowing people who lack imagination to use a popular character to sell no works instead of creating their own characters.

One can still plagiarize something in the public domain--having it freely available shouldn't mean you can take it and use the characters and other distinct things in your own work etc. IMO.
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Old 06-22-2010, 07:38 PM   #6
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Originally Posted by dmaul1114 View Post
Well on that front maybe the laws need to change what public domain means.

Maybe entering the public domain should just mean that that book/movie/tv show/music etc. can be copied and distributed freely.

But not that people can freely use those characters etc. for new products etc.--if that's what the Mickey Mouse case is about.

I'd be ok with that. The public domain should be out free access to old works--not allowing people who lack imagination to use a popular character to sell no works instead of creating their own characters.

One can still plagiarize something in the public domain--having it freely available shouldn't mean you can take it and use the characters and other distinct things in your own work etc. IMO.
You want to make the public domain gratis but not libre? That somewhat defeats the purpose of progress and would quickly put Disney out of buisness. Snow white the little mermaid Cinderella um well pretty much all of them public domain characters Disney used and keeps using. Movies they keep selling over and over now.

What we need is a simple flat term like 28 years.
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Old 06-22-2010, 07:46 PM   #7
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Fair point on that. I just have little respect for that kind of stuff (have never liked Disney) or that Pride and Prejudice and Zombies stuff. If someone doesn't have the talent to create their own characters and stories, they're not deserving of my precious free time or money.

I don't see the "progress" there either. There's no progress by making money by remaking old stories, progress comes from creating entirely new stories etc. IMO.

But I'm ok with public domain allowing for that, as it's easy enough for me to avoid such crap.

But I won't budge on the term of copyright. Needs to be until death of the creator at the shortest, and ideally 10-15 years later so there's incentive to publish work late in life, or for families to publish their work posthumously etc.

People should get to enjoy the fruits of their labors for at least their lifetime if they're fortunate enough to create something that people want to read/watch/listen to over that long of a time span.

The creators not in it for money are free to give it away online and never seek to make money off it. Those who choose to produce it for sale, should have control of it at least until death.
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Old 06-22-2010, 08:07 PM   #8
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And then one day they pull out Walt Disney's frozen head and claim he isn't really dead. No a fixed term is the only thing that makes sense. Postumus publication would still get a full term of copyright.

Or we can just junk the whole system and start over

Quote:
There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary public interest. This strange doctrine is not supported by statute nor common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped, or turned back, for their private benefit. That is all.

Robert A Heinlien in Life-line 1939
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Old 06-22-2010, 08:12 PM   #9
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Just have to agree to disagree.

I'll never support any system that lets a living author, musician etc. see companies legally making money off his/her work with he/she not getting their cut of it. I 100% put the creator's interests above the public interest in that sense. If they wanted to give the work to society, anyone is free to do so by putting it out free online and never asking money for it in the first place.

If someone is lucky/talented enough to make something that sells for their lifetime, they should get their cut of it for at least that long.

I'm not a big fan of their heirs continuing to profit off it though--so I don't like the death +75 years standard we have now. So make it to death or a bit beyond.
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Old 06-22-2010, 08:18 PM   #10
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Just need to find a middle ground. My vote is copyright is the creators lifetime, plus 10-15 years (to encourage late in life work and posthumous publication).

Get rid of copyright and quality will suffer as people produce less since they make less money off it. But the public domain is a good for society and needs to exist, so just a matter of having copyright law that's fair to content creators, but also allows for the public domain to exist.
The only problem I have with that idea is how would it be applied to copyrights held by corporations, especially for works by collective artists, such as movies? Mayhap a fixed lifespan of a copyright, say 90 years, with no renewal? That would cover most creators lifetimes plus some yet would end the endless copyrights that seem to be the norm now, especially for large corporations like Disney.
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Old 06-22-2010, 08:19 PM   #11
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I know we're not supposed to get political or anything here, but by chance I'm reading this story at the same time as this other one. Just saying.
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Old 06-22-2010, 08:20 PM   #12
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The only problem I have with that idea is how would it be applied to copyrights held by corporations, especially for works by collective artists, such as movies? Mayhap a fixed lifespan of a copyright, say 90 years, with no renewal? That would cover most creators lifetimes plus some yet would end the endless copyrights that seem to be the norm now, especially for large corporations like Disney.
Yeah, something like that.

We need a different type of copyright law for those held by corporations than those held by individuals for sure since death obviously doesn't work for corporations.

Something like fixed 75-90 years probably works when you figure most of the creators are going to be in their early 20s or older if they're writing, directing, producing etc.

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Old 06-22-2010, 08:27 PM   #13
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I know we're not supposed to get political or anything here, but by chance I'm reading this story at the same time as this other one. Just saying.
You might want to move that one to the lounge. I'm sure you'll get many pages of comments especially with that Judge's financial disclousures http://news.yahoo.com/s/ynews/201006...s/ynews_ts2771 showing a pretty oil stock heavy portfolio.
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Old 06-22-2010, 11:41 PM   #14
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Yeah, something like that.

We need a different type of copyright law for those held by corporations than those held by individuals for sure since death obviously doesn't work for corporations.

Something like fixed 75-90 years probably works when you figure most of the creators are going to be in their early 20s or older if they're writing, directing, producing etc.
I'd support a fixed term of 50 years from the date of the original release, rounded to 1 January of the next year, with no renewal. Reasons:

- Using the date of original release provides a fixed reference point. The time it takes an author to write a book is not a factor, it's the date the book is actually released that matters for copyright purposes.

- Fifty years is essentially the life of the creator but doesn't depend on when the creator actually passes on. It also removes the factor of who presently has the copyright on a item, whether an individual or a corporation it makes no difference.

- Rounding to 1 January is for simplicity, with everything released in a particular year falling into the public domain at the same time.

Basically, this rule makes it clear what is and is not in the public domain. Under this rule, any book released in 1960 would enter the public domain on 1 January 2011.

Just my opinion, and hopefully something that might work.
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Old 06-23-2010, 12:01 AM   #15
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I'd support a fixed term like that, but it would have to be higher than 50 years.

Again, I could never support a system where an author (or musician etc.) can see other people making money off their content while they're alive without them getting their royalty payment.

I think death is simpler, but I'd go for a fixed term of say 100 years if you want a clear date in place, as that's long enough to make nearly 100% sure copyrights aren't expiring in the person's lifetime. 80 would be about as low as I'd go, since not many people publish stuff before 20, nor live to 100.
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