Retroactive Copyright?

[HarryT]

Originally Posted by murraypaul

Are they distributing (an active act), or are they making available for download (a passive one)? The act of distributing (downloading) is triggered solely by a deliberate act of the end user, unlike P2P where background transfers can happen automatically.

That's the key point, of course. It's completely impractical to suggest that every site that offers books downloads should have a knowledge of the copyright status of every book in the world, in every country in the world. Really, all anyone can practically do is to say "don't download this book if it's protected by copyright in your country", and leave it to the honestly of the downloader.

[bill_mchale]

Originally Posted by HarryT

They not only have a right to, but a duty to, under the Berne Convention to which the US is a signatory.

They may have the duty, but they may not have the power to restore a copyright that has lapsed (Governments, or parts of governments don't have rights, they have powers). According to the US Constitution, copyright serves a very specific purpose (to induce the creators of intellectual property to publish it, or in the case of patents, to make the knowledge available to others). Once a copyright is expired, it is difficult to see how restoring said copyright increases that motive, particularly since the authors of said works have been dead for years.

I know the Supreme Court has disagreed in the past, but to my mind, in the United States, there should be no way to change the terms of copyright on an existing work. If published under terms X, the copyright should expire under X as well, even if other copyright laws have since replaced the original law.

--
Bill

[tubemonkey]

Originally Posted by bill_mchale

I know the Supreme Court has disagreed in the past, but to my mind, in the United States, there should be no way to change the terms of copyright on an existing work. If published under terms X, the copyright should expire under X as well, even if other copyright laws have since replaced the original law.

This wouldn't have been an issue if the US had signed the Berne Convention to begin with, instead of waiting a hundred years to do so.

[bill_mchale]

Originally Posted by tubemonkey

This wouldn't have been an issue if the US had signed the Berne Convention to begin with, instead of waiting a hundred years to do so.

No, this specific case would not have been, but I suspect it would have also caused its own hornets nest of legal issues. After all, copyright in the United States was much more limited back then (which in my opinion was a good thing).

--
Bill

[Kali Yuga]

Originally Posted by HarryT

It's completely impractical to suggest that every site that offers books downloads should have a knowledge of the copyright status of every book in the world...

Unfortunately, "difficult" or "impractical" requirements don't excuse anyone from legal responsibilities.

I doubt it's all that difficult though, since any useful site will use a database. Not a snap to add that data, but not impossible either.

And while a proactive result might be difficult, that does not apply to notifications from the rights holder.

[Kali Yuga]

Originally Posted by bill_mchale

According to the US Constitution, copyright serves a very specific purpose (to induce the creators of intellectual property to publish it, or in the case of patents, to make the knowledge available to others).

Actually, the SCOTUS has already recognized that the preambulatory phrase does not serve as a limit on the powers of Congress to extend copyright terms by the time [i]Eldred v Ashcroft[/u] rolled around. (Same with the 2nd Amendment, by the way.)

Originally Posted by bill_mchale

Once a copyright is expired, it is difficult to see how restoring said copyright increases that motive, particularly since the authors of said works have been dead for years.

Nothing in the law, or the Constitution, expressly bars Congress from reinstating a copyright. The only requirement, apparently, is that the copyright terms must be limited. Extensions, including when the author is dead, have also been repeatedly upheld.

[murraypaul]

Originally Posted by Kali Yuga

Unfortunately, "difficult" or "impractical" requirements don't excuse anyone from legal responsibilities.

What legal responsibilities does an Australian entity, operating servers in Australia, have under US law?

[Kali Yuga]

Originally Posted by murraypaul

What legal responsibilities does an Australian entity, operating servers in Australia, have under US law?

I will admit I'm not entirely certain. There is no international copyright law, and signatories to the Berne Convention don't always enact every last provision and may interpret it slightly differently. It's entirely plausible that the courts in the UK may decide that US copyrights do apply in the UK without that having any bearing on other nations. Clearly there are many situations where the law in one country cannot be applied against a citizen who is acting in another country.

That said, imagine the following purely hypothetical situation.

Let's say Canada legalizes marijuana for general use, and the US does not. I stand on the border of Canada and the US with an ounce of pot in my hand, and idly toss the bag across the border, near a US citizen. Perhaps the citizen asked me to do so, perhaps not, but picks it up anyway.

I'm in Canada, operating legally. The recipient is not.

• Legally, am I culpable under US law for my actions?
• Does that change based on whether or not someone arrests me?
• Although I have every reason to believe my actions are morally sound, am I at all ethically required to abide by or honor US laws when my actions affect US citizens?
• Does my intent matter -- e.g. what if the toss was an accident? What if I believed both I and the dropped bag were in Canada? What if I didn't see the US citizen, but assumed one would pick up the bag sooner or later? What if I made a conscious decision to flout US law?
• Would telling the US citizen "marijuana is not legal in the US" absolve me of any legal and/or ethical responsibilities?
• Should the US citizen telling me "marijuana is not legal in the US" change my behavior in the future?
• Is telling the US citizen "marijuana is not legal in the US" a recognition that my action may not be legal?


On an alternate but related point: Different principles are often invoked when we are discussing geographic restrictions on the sale of ebooks, and someone gets blocked from purchasing an ebook that is available abroad. The aggrieved party proudly proclaims that the Internet is a global network, and that national borders are either not valid or not relevant, or that local laws and copyright agreements should not necessarily apply, and that acting otherwise is backwards and outdated.

However, when it comes to the distribution of public domain books, the walls come right back up.

When an Australian wants to purchase an ebook, and cannot do so because of Australian copyrights, it doesn't matter that "Australia is Australia" and local contracts, agreements and laws apply. When another Australian wants to share a book that is legitimately PD in Australia but not elsewhere, and a demand is made to remedy the situation somehow, now it matters that "Australia is Australia" and we invoke local copyright laws.

This is not to state that anyone specifically contradicts their own positions. Rather, people seem willing to invoke whatever principles are at hand to achieve the actual underlying (and laudable) goal, which is "broad distribution of digital goods." It's essentially coincidental that this goal requires the obliteration of national borders one minute, and the fierce defense of them the next.

[Hellmark]

Originally Posted by murraypaul

What legal responsibilities does an Australian entity, operating servers in Australia, have under US law?

An aussie, operating servers in Australia, only has to comply with Australian law. At that point all further legal responsibility falls to the user of the site, and not the site itself.

[murraypaul]

Originally Posted by Kali Yuga

That said, imagine the following purely hypothetical situation.

Let's say Canada legalizes marijuana for general use, and the US does not. I stand on the border of Canada and the US with an ounce of pot in my hand, and idly toss the bag across the border, near a US citizen. Perhaps the citizen asked me to do so, perhaps not, but picks it up anyway.

I think a more accurate comparison would be that the Canadian tosses the bag up in the air, and the American reaches across the boarder to grab it. The act of border crossing in each case is initiated by the user.

That is very different from me throwing the bag across the border. In your situation I have distributed the item, in mine he has retrieved it.

I'm in Canada, operating legally. The recipient is not.

• Legally, am I culpable under US law for my actions?
• Does that change based on whether or not someone arrests me?
• Although I have every reason to believe my actions are morally sound, am I at all ethically required to abide by or honor US laws when my actions affect US citizens?
• Does my intent matter -- e.g. what if the toss was an accident? What if I believed both I and the dropped bag were in Canada? What if I didn't see the US citizen, but assumed one would pick up the bag sooner or later? What if I made a conscious decision to flout US law?

With my change to the situation, no to all of the above. To take point 3 especially. Assume that the US still has legalised slavery, and Canada does not. A slave escapes to Canada. Is Canada ethically required to return the slave?

• Would telling the US citizen "marijuana is not legal in the US" absolve me of any legal and/or ethical responsibilities?
• Should the US citizen telling me "marijuana is not legal in the US" change my behavior in the future?
• Is telling the US citizen "marijuana is not legal in the US" a recognition that my action may not be legal?

No, it is telling him that his action may not be legal. I'm tossing something up in the air in my own country, he is the one importing it to the US.

When an Australian wants to purchase an ebook, and cannot do so because of Australian copyrights, it doesn't matter that "Australia is Australia" and local contracts, agreements and laws apply. When another Australian wants to share a book that is legitimately PD in Australia but not elsewhere, and a demand is made to remedy the situation somehow, now it matters that "Australia is Australia" and we invoke local copyright laws.

I don't think that anyone is saying that Americans should be legally allowed to download books from PG Australia which are not PD in the US. They are saying that it is not PG Australia's job to enforce US laws.

[murraypaul]

Here is another comparison.
The Voice of America and BBC World service routinely deliberately broadcast programmes into hostile countries that would be illegal to broadcast within those countries. Are they ethically obliged to respect the other countries' laws and restrain from those broadcasts?

[HarryT]

Originally Posted by murraypaul

I don't think that anyone is saying that Americans should be legally allowed to download books from PG Australia which are not PD in the US. They are saying that it is not PG Australia's job to enforce US laws.

Yes, that's exactly it.

[murraypaul]

Originally Posted by Kali Yuga

On an alternate but related point: Different principles are often invoked when we are discussing geographic restrictions on the sale of ebooks, and someone gets blocked from purchasing an ebook that is available abroad. The aggrieved party proudly proclaims that the Internet is a global network, and that national borders are either not valid or not relevant, or that local laws and copyright agreements should not necessarily apply, and that acting otherwise is backwards and outdated.

However, when it comes to the distribution of public domain books, the walls come right back up.

When an Australian wants to purchase an ebook, and cannot do so because of Australian copyrights, it doesn't matter that "Australia is Australia" and local contracts, agreements and laws apply. When another Australian wants to share a book that is legitimately PD in Australia but not elsewhere, and a demand is made to remedy the situation somehow, now it matters that "Australia is Australia" and we invoke local copyright laws.

This is not to state that anyone specifically contradicts their own positions. Rather, people seem willing to invoke whatever principles are at hand to achieve the actual underlying (and laudable) goal, which is "broad distribution of digital goods." It's essentially coincidental that this goal requires the obliteration of national borders one minute, and the fierce defense of them the next.

I think another difference here is that there is no reason that geographic restrictions could not be done away with. They are not a matter of law, they are contractual between authors and publishers. They are antiquated, and over time will almost certainly change, perhaps to a language-based contract rather than a geographical one, and can be changed on an author-by-author basis. Therefore complaining about them might actually achieve something. By comparison, I doubt anyone believes that lobbying their political representative to relax copyright restrictions is going to achieve anything, and could anyone only be changed in a big-bang way.

(I do agree however with the your basic point that people are happy to have their cake and eat it )

[HarryT]

Originally Posted by murraypaul

I think another difference here is that there is no reason that geographic restrictions could not be done away with. They are not a matter of law, they are contractual between authors and publishers.

Sorry, but they ARE a matter of law, as you yourself say: contract law. A publisher can't simply ignore the contracts they've signed with their authors.

[tompe]

Originally Posted by HarryT

Sorry, but they ARE a matter of law, as you yourself say: contract law. A publisher can't simply ignore the contracts they've signed with their authors.

Of course they can if the author do not complain. So geographical restrictions can be removed without changing any laws.