Retroactive Copyright?

[HarryT]

Originally Posted by tompe

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

Yes, contracts can be re-written, with the agreement of the parties involved. But they can't simply be ignored; that was the point that I was making.

[murraypaul]

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.

I don't think you misunderstood what I was saying.
One is statute (or common), one is contract.
The publisher and author can agree, at any point, to change their contract. They cannot agree to change a statute. So lobbying may actually be able to change one, but has no plausible chance of changing the other.

[Kali Yuga]

Originally Posted by murraypaul

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.....

This scenario fails to express how the Australian server is making the materials available to the American.

A closer parallel might be that instead of the Canadian tossing it, he puts a bunch of pot on a table inches from the border, puts a little sign on it saying "not legal in the US," and does nothing as the American repeatedly reaches across the border.

Or: If the server distributing PD material was actually operating in America rather than Australia, and had a .au extension, what would be the difference? Just that the lawyers don't have to use an international stamp when sending a notice? From a practical perspective, the resulting level of access is identical.

Originally Posted by murraypaul

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?

If Canadian citizen is taken as a slave in the US, should Canada do nothing? After all, the Canadian slave is in the US, so US law applies.

I do agree there are situations where ethical concerns may override legal ones. Distributing ebooks where copyright is in dispute, well, just isn't one of them -- or at least, isn't anywhere near comparable to the ethical concerns relating to slavery.

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.

What I'm trying to point out is that both halves of the transaction are involved in the process.

Passivity does not necessarily relieve you of any and all responsibilities, especially once the host is explicitly asked to stop distributing the material freely in locations where it is not yet in PD.

Again I do not believe a full take-down is required or justifiable (though it is often requested), but a disclaimer doesn't do it either.

[murraypaul]

Originally Posted by Kali Yuga

A closer parallel might be that instead of the Canadian tossing it, he puts a bunch of pot on a table inches from the border, puts a little sign on it saying "not legal in the US," and does nothing as the American repeatedly reaches across the border.

OK, and in that situation the Canadian is doing nothing wrong. In fact this is very close to the Voice of America situation.

Or: If the server distributing PD material was actually operating in America rather than Australia, and had a .au extension, what would be the difference? Just that the lawyers don't have to use an international stamp when sending a notice? From a practical perspective, the resulting level of access is identical.

It is a huge difference. They would be operating in the US, and therefore subject to US law.

If Canadian citizen is taken as a slave in the US, should Canada do nothing? After all, the Canadian slave is in the US, so US law applies.

I'm sure they would make lots of political efforts, but they would have no legal recourse.

I do agree there are situations where ethical concerns may override legal ones. Distributing ebooks where copyright is in dispute, well, just isn't one of them -- or at least, isn't anywhere near comparable to the ethical concerns relating to slavery.

I'm confused. Your argument so far has been that ethical concerns should override legal ones in this case, in that you accept that PG Australia are not breaking the law, but that they are ethically obliged to make an effort to accomodate US wishes.

Passivity does not necessarily relieve you of any and all responsibilities, especially once the host is explicitly asked to stop distributing the material freely in locations where it is not yet in PD.

If Saudi Arabia (or another religious state) explicitly asked PG or PGA to stop distributing material to their citizens which was illegal in their country due to offending against religious prescriptions, would PG and PGA be required to do so?

Again I do not believe a full take-down is required or justifiable (though it is often requested), but a disclaimer doesn't do it either.

The US could request whatever it wishes, but it is powerless, it cannot enforce its laws against a foreign entity in a foreign country. Again, your argument so far had been that ethically PGA should accommodate the request anyway.

[Kali Yuga]

Originally Posted by murraypaul

I think another difference here is that there is no reason that geographic restrictions could not be done away with....

As HarryT points out, there's a few million contracts which beg to differ.

I don't see how you could viably change the laws -- especially since, as far as I know, there is no law that actually prevents, or interferes with, an author consigning the international rights to one entity.

In fact, I'm not sure how you could pass laws that would alter the situation, without crushing the rights not just of the publishers but the authors as well. Would you write 180+ laws that nullify all current assignment of international rights? What about the publishers who expended resources translating the books, are they out of luck? Would you declare overnight that any publisher who had any contract with any author could release international editions?

Perhaps you will force publishers to work in other countries? Or force retailers to work internationally, whether they want to or not? After all, publishers and retailers already have the right to conduct business internationally, no law prevents that.

What about materials that are legal in one location, and illegal in others? E.g. anti-semitic speech is legal in the US and illegal in France. Should the French publishers or retailers be forced to violate French laws, because international law requires this book to be sold in France? Might this expose the author to getting arrested if he goes to France, even if he actually abided by French censorship laws while there?

I can't imagine how such a law could be drafted, let alone passed, let alone made fair, any faster than will be created by growing economic incentives. I do believe the issue will be resolved, it's just going to happen faster by dangling currency around than by trying to eradicate every book contract in existence.

[murraypaul]

Originally Posted by Kali Yuga

As HarryT points out, there's a few million contracts which beg to differ.

And as I have said, authors and publishers can choose to change those contracts. Progress can be made, if they see that there is profit to be made from that change.

In fact, I'm not sure how you could pass laws that would alter the situation, without crushing the rights not just of the publishers but the authors as well.

I haven't talked about changing the law, or forcing authors or publishers to change.

[Kali Yuga]

Well, a few thoughts.....

International Lawsuits for Copyright Infringement Do Exist
There have been quite a few international copyright actions. Perhaps the most pertinent is Kazaa. They started out in Holland, and were purchased by a company that operated out of Australia and were incorporated in Vanuatu. They were sued in American courts, and ultimately settled. My knowledge is incomplete, but I do not believe jurisdiction prevented any of the lawsuits from proceeding.

Allofmp3.com, whose servers were in Russia, was also sued in American courts. Unlike Kazaa, they were not operating a p2p network, their servers were all in Russia. They did try to claim the American courts did not have jurisdiction, but shut down before the case was decided.

As mentioned earlier, there's also the "Stormtrooper Costume" case currently under way in the UK, so we'll see how that turns out.

Again, this is an extremely complicated field of law, so I cannot categorically state "yes PGA can be sued." However, the fact that no one has done more than send a warning letter to PGA is not proof either way.


Passivity Does Not Excuse Responsibility
This is a bit more clear in the law. Namely, most P2P networks and services can legitimately be viewed as passive agents in any infringing file sharing. Napster, Kazaa, Grokster and the Pirate Bay are not actively uploading and hosting infringing content; they are operating open networks, which let the users share whatever content they so desire.

The courts have upheld that this does not absolve them of legal responsibility in multiple jurisdictions, including the US, Australia and Sweden.

Similarly, Youtube is in a dispute with Viacom. So far the courts have held that Youtube may not be required to actively hunt down infringing content on its site, but is still responsible if they are notified of an infringing video. Youtube has fully accepted that responsibility.

None of this guarantees that GPA would lose a case, only that there are a few examples where passivity does not absolve responsibility -- especially once you are notified.


Morally Unpleasant Examples
Just remember, I was not the one who introduced extreme moral examples...

Let's say that the nation of Greater Berzerkistan legalizes the production and distribution of child pornography, and does not bar sharing or exporting such goods outside of Berzerkistan's borders. Trff Bmzklfrpz sets up a studio and a server, and happily provides his content to anyone outside his nation with a Paypal account, along with a disclaimer stating that he cannot vouch for the legality of the content.

• Can Trff be arrested?
• If not, should Trff voluntarily restrict his content to Berzerkistan anyway?
• Is Trff morally responsible for his actions, even if he believes he is engaged in a legitimate activity?


Or: A woman in an almost-empty restaurant starts choking on a bit of food. I sit by passively and let her choke. There is almost no risk to my health and safety if I assist her, yet I do nothing. Am I in the clear, legally and morally, if she chokes to death? Does my passivity absolve any possible responsibilities on my part?


My position, by the way, is that sharing materials that are PD in one nation, and not in another, is a fairly trivial moral issue. Even if they intend to violate US copyright durations and know/believe that the disclaimer is a joke, it's still pretty trivial. This is why I've tried to avoid examples in extremis, because I for one think the stakes can change when the conduct under discussion has more significant consequences.

I don't think PGA's servers should be seized by the AFP, or block any visitor from outside of Australia, or that they should pull the content completely. I just think that if they're going to rely upon a respect for the expiration of copyright laws that makes it 100% legit for them to distribute PD materials, they should make a good faith effort -- especially when they receive a specific request -- to block content from the locations where it is not PD. The disclaimers, in my opinion, fail that particular test; an IP block, which still would hardly guarantee accuracy and will not block a determined infringer, is just a better demonstration of respect for IP terms abroad.

Moreover, PGA is not standing up to defy an immoral law. They're basically just calling a lawyer's bluff. It's not quite the same thing, in my opinion.


Geo Restrictions
I guess I misread your post -- I assumed you were recommending some type of legal changes to remedy the situation.

I agree the contracts can, and probably will, be revised. My feeling though is that the economic incentives will do most of the real heavy lifting. If/when a country gets close to the "ebooks are 10% of the market," I think you'll see a LOT of big changes and a lot more international availability.

That said, there actually are reasons why some things won't change, mostly due to cultural issues. If I was an American author working with an American publisher, there is no way I'd trust them to really do a good job selling my book to a French audience, let alone translate it well. Signing on with a French publisher will almost certainly produce better results and stronger local incentives.

For small sales, possibly up to midlist authors, this probably isn't relevant, so those authors will likely just throw open the gates.

But I do expect the general system to continue, especially for authors who really want to make a go at international sales.

[Fbone]

We keep hearing of the publisher's "gentleman agreements" that prevent them from selling their books in other territories even when they have international rights. I believe this arrangement is century old. The publishers then have to try to sell foreign rights to a third party familiar with the local market and laws.

[FF2]

I may have missed it in the various byways that have occurred in this thread.

But I thought I had read that the differences in pbooks geo-restrictions were based on contracts whereas ebooks, were based on some law. That is a physical store (amazon) can sell pbooks over borders - georestrictions do not apply. But Amazon cannot sell ebooks over borders because georestrictions do apply but as a basis in law and not the same contracts or have I mis-remembered or misread or just missed something. So if merely a legal convention on ebooks, can't that be changed by a change in law. (excepting for the moment potentially newer contracts that may have established difference for newer ebooks)

[Greg Anos]

Originally Posted by Kali Yuga

I don't think this is just an American trait.



It is disturbing, hence the court challenges. The problem is that especially now, the SCOTUS does not believe its job is to determine whether a law detracts from a public good. Rather, they believe their job is to determine whether or not a law is Constitutional.

As to whether it's an attack on PD, I don't think that's really the case. It's a question of determining the extent of the powers of Congress to set copyright terms, and whether PD status can be rescinded.

This is not a matter of PD being rescinded, at least as you seem to be using term rescind. Our constitution states that copyright and patent should be of a "limited duration". Once the period has expired, the copyright not longer exists. If it not longer exists, it cannot be extended.

What is at hand is the question - can "property" (considering "intellectual property" as property) be seized to the government from the public, without compensation? In real property, the answer is mostly no. (There are problems with partial seizing, such as zoning restrictions. Full seizing, though, is clearly not permitted - without fair compensation to the owner. In this case, the "owner" of an expired copyright is the public.)

[Greg Anos]

Originally Posted by Kali Yuga

Well, a few thoughts.....

International Lawsuits for Copyright Infringement Do Exist
There have been quite a few international copyright actions. Perhaps the most pertinent is Kazaa. They started out in Holland, and were purchased by a company that operated out of Australia and were incorporated in Vanuatu. They were sued in American courts, and ultimately settled. My knowledge is incomplete, but I do not believe jurisdiction prevented any of the lawsuits from proceeding.

Allofmp3.com, whose servers were in Russia, was also sued in American courts. Unlike Kazaa, they were not operating a p2p network, their servers were all in Russia. They did try to claim the American courts did not have jurisdiction, but shut down before the case was decided.

As mentioned earlier, there's also the "Stormtrooper Costume" case currently under way in the UK, so we'll see how that turns out.

Again, this is an extremely complicated field of law, so I cannot categorically state "yes PGA can be sued." However, the fact that no one has done more than send a warning letter to PGA is not proof either way.


Passivity Does Not Excuse Responsibility
This is a bit more clear in the law. Namely, most P2P networks and services can legitimately be viewed as passive agents in any infringing file sharing. Napster, Kazaa, Grokster and the Pirate Bay are not actively uploading and hosting infringing content; they are operating open networks, which let the users share whatever content they so desire.

The courts have upheld that this does not absolve them of legal responsibility in multiple jurisdictions, including the US, Australia and Sweden.

Similarly, Youtube is in a dispute with Viacom. So far the courts have held that Youtube may not be required to actively hunt down infringing content on its site, but is still responsible if they are notified of an infringing video. Youtube has fully accepted that responsibility.

None of this guarantees that GPA would lose a case, only that there are a few examples where passivity does not absolve responsibility -- especially once you are notified.


Morally Unpleasant Examples
Just remember, I was not the one who introduced extreme moral examples...

Let's say that the nation of Greater Berzerkistan legalizes the production and distribution of child pornography, and does not bar sharing or exporting such goods outside of Berzerkistan's borders. Trff Bmzklfrpz sets up a studio and a server, and happily provides his content to anyone outside his nation with a Paypal account, along with a disclaimer stating that he cannot vouch for the legality of the content.

• Can Trff be arrested?
• If not, should Trff voluntarily restrict his content to Berzerkistan anyway?
• Is Trff morally responsible for his actions, even if he believes he is engaged in a legitimate activity?


Or: A woman in an almost-empty restaurant starts choking on a bit of food. I sit by passively and let her choke. There is almost no risk to my health and safety if I assist her, yet I do nothing. Am I in the clear, legally and morally, if she chokes to death? Does my passivity absolve any possible responsibilities on my part?


My position, by the way, is that sharing materials that are PD in one nation, and not in another, is a fairly trivial moral issue. Even if they intend to violate US copyright durations and know/believe that the disclaimer is a joke, it's still pretty trivial. This is why I've tried to avoid examples in extremis, because I for one think the stakes can change when the conduct under discussion has more significant consequences.

I don't think PGA's servers should be seized by the AFP, or block any visitor from outside of Australia, or that they should pull the content completely. I just think that if they're going to rely upon a respect for the expiration of copyright laws that makes it 100% legit for them to distribute PD materials, they should make a good faith effort -- especially when they receive a specific request -- to block content from the locations where it is not PD. The disclaimers, in my opinion, fail that particular test; an IP block, which still would hardly guarantee accuracy and will not block a determined infringer, is just a better demonstration of respect for IP terms abroad.

Moreover, PGA is not standing up to defy an immoral law. They're basically just calling a lawyer's bluff. It's not quite the same thing, in my opinion.


Geo Restrictions
I guess I misread your post -- I assumed you were recommending some type of legal changes to remedy the situation.

I agree the contracts can, and probably will, be revised. My feeling though is that the economic incentives will do most of the real heavy lifting. If/when a country gets close to the "ebooks are 10% of the market," I think you'll see a LOT of big changes and a lot more international availability.

That said, there actually are reasons why some things won't change, mostly due to cultural issues. If I was an American author working with an American publisher, there is no way I'd trust them to really do a good job selling my book to a French audience, let alone translate it well. Signing on with a French publisher will almost certainly produce better results and stronger local incentives.

For small sales, possibly up to midlist authors, this probably isn't relevant, so those authors will likely just throw open the gates.

But I do expect the general system to continue, especially for authors who really want to make a go at international sales.

Let me play with this a bit. A consortium of major copyright holders overthrow a government in Berzerkistan, and set up a puppet government there. (Think "The Dogs of War".) The puppet government passed a law saying that all copyrights are perpetual, and anybody can file a list of public domain books, ect, and regain copyright to those work. The consortium submits a list of every known title one second after the law passed.

Should the US uphold all the expired copyrights?

[FF2]

Originally Posted by Ralph Sir Edward

Let me play with this a bit. A consortium of major copyright holders overthrow a government in Berzerkistan, and set up a puppet government there. (Think "The Dogs of War".) The puppet government passed a law saying that all copyrights are perpetual, and anybody can file a list of public domain books, ect, and regain copyright to those work. The consortium submits a list of every known title one second after the law passed.

Should the US uphold all the expired copyrights?

No, of course not.

BUT if the US passes such a law, everyone else shall be bound by it - that's the way we play these days.