Today is Public Domain Day

[DMcCunney]

Originally Posted by HarryT

Apologies if I misunderstood you. I had thought that you were saying that it was unlikely that anyone would take any action against people selling a book that was in the public domain in the "wrong" country; I was using the example of "Nineteen Eighty-Four" as an example of where a rights-holder had done precisely that.

No, I said the likelihood was in proportion to the amount of money perceived to be involved. It may be worth the while to send a take down letter. It may not be worth the while to hire a lawyer and go to court. IT will depend upon the property in question.

And the point is moot unless you are aware of the violation. As rights holder, it's on you to be aware of and take action on violarions.

But I totally accept your point that it's about revenue, not copyright law as such.

Sure. Rights have value, which is why there are laws governing them, and the desire to enforce the law will likely be in direct proportion to the perceived value.

There will be exceptions, but in most cases, assume money is the root cause.
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Dennis

[Elfwreck]

Originally Posted by DMcCunney

The laws governing intellectual property rights tend to be set up to require you as the rights holder to defend them. It's largely on you to look for and take action about rights violations, with the corollary that if you don't defend your rights, you may lose them.

For example, some years back some fans wrote to SF/fantasy writer Katherine Kurtz. They wanted her permission publish a magazine of fan fiction set in her Deryni universe, which they would then sell. Kurtz sad "no". They did it anyway. Katherine had to sue, or risk losing rights to her own creations. She sued, won, and the fans were out large amounts of money for legal fees, court costs, and ads in the relevant trade papers admitting that Katherine had the rights and they had violated them.

It's my understanding that you don't have to defend copyright, but you do have to defend trademark or lose it.

A copyright owner can give permission, tacit or explicit, for use of their content to any number of people without losing the right to restrict it from other uses. If fans make a magazine & sell it, and Kurtz doesn't stop them, that does *not* give Universal Pictures any right to make a movie without permission.

The right to control usage includes the right to grant consent at will.

Trademark is different--because the purpose of trademark is (ostensibly) to avoid customer confusion, if you don't stop a tm'd property from being used w/o your consent, you have allowed public understanding of the mark to include products that aren't yours, and lose your right to demand exclusivity for that trademark.

(The best example of a real understanding of this is Second Life's "Proceed and Permitted" letter to the creator of getafirstlife.com.)

[DMcCunney]

Originally Posted by Elfwreck

It's my understanding that you don't have to defend copyright, but you do have to defend trademark or lose it.

Yes and no. As I understand it, you do have to defend copyright, but what is required to do so is less stringent than trademarks. (You may recall Xerox's continual reminders to everyone that Xerox was a registered trademark, precisely to prevent xerox from slipping into common use as a verb meaning "make a photocopy of", whereupon they would lose their trademark.)

Trademark is also much harder to get. When you file for a trademark, the first thing that happens in the US is that the government says "No", and requires you to demonstrate why your mark is unique and deserving of trademark status. Once you've done that, the issue is thrown open to public comment, and anyone else can throw an objection monkey wrench into the works.

Getting a copyright is easy. It exists automatically on completion of the work. Registering a copyright is easy. Send copies along with the fee to the Library of Congress. You don't have to do it to have copyright, but you can come down a lot harder on infringers if you've done so.

Getting a trademark, and defending it once you have is another matter. (The same rules apply to service marks, which cover services in the way trademarks cover goods.)

A copyright owner can give permission, tacit or explicit, for use of their content to any number of people without losing the right to restrict it from other uses. If fans make a magazine & sell it, and Kurtz doesn't stop them, that does *not* give Universal Pictures any right to make a movie without permission.

The right to control usage includes the right to grant consent at will.

Sure. But Kurtz didn't give consent, and couldn't simply ignore the infringement. As far as I know, she was required to go after the fans. Filing suit is not something she wanted to spend time and money doing. Sufficient for copyright that you go after infringement you are aware of. You aren't expected to spend all your time looking for infringement - only to make an effort when you become aware of it. But as far as I know, if you are aware of infringement and don't take action, you can jeopardize your rights.

Trademark is different--because the purpose of trademark is (ostensibly) to avoid customer confusion, if you don't stop a tm'd property from being used w/o your consent, you have allowed public understanding of the mark to include products that aren't yours, and lose your right to demand exclusivity for that trademark.

Correct. So folks with trademarks tend to spend a lot more time and effort making sure there isn't infringement, like looking at new trademark filings in case the filer has unknowingly done something too similar to theirs. It's why you do a trademark search as part of filing.

It can be grimly amusing. I use the Mozilla Firefox browser. Firefox is the third name it has been called by. It was originally called Phoenix, and then Firebird. In both cases, the Mozilla folks had inadvertently picked a name already used by another open source software project, and infringed a trademark. Oops! It resulted in a popular extension called FireSomething, with the slogan "All your branding are belong to FireSomething!", that would randomly change the name displayed on the title bar, using a user configurable set of prefixes and suffixes. Mozilla PlasmaPorpoise, anyone? Ben Goodger, who used to be a lead Firefox dev and is now at Google, is reported to have fallen off his chair laughing the first time he saw FireSomething. (Unfortunately, Firefox 3.6 beta 5 breaks Firesomething... )

But a writer isn't expected to scan all new magazine story publications or books looking for infringement.
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Dennis

[ekaser]

Originally Posted by Elfwreck

It's my understanding that you don't have to defend copyright, but you do have to defend trademark or lose it.

A copyright owner can give permission, tacit or explicit, for use of their content to any number of people without losing the right to restrict it from other uses. If fans make a magazine & sell it, and Kurtz doesn't stop them, that does *not* give Universal Pictures any right to make a movie without permission.

Correct. To further clarify that particular situation, the reason many authors do not want to let fans write and publish stories based upon their characters and 'worlds' is that those same fans can turn around and sue the author in the future if the author writes a story that is in any way similar to stories the fans wrote. (They may not WIN, but they MIGHT, and the author still has to defend against the suit.) This kind of thing has happened many times. A secondary reason is that some authors simply just don't want others crapping in the author's sandbox, so to speak. You're free to write your own stories that are remarkably similar to another author's, but you may not do so while appropriating characters (names & traits) and settings created by another author. You can write as many spy novels as you want, just don't name any of your characters James Bond. You can get away with naming your character James Bond, if you're writing a western or romance novel and the character doesn't drink martinis, shaken, not stirred (or whichever way it is). If it waddles and quacks, the court will side with the original author. Your copyright covers the exact words you put down on paper, and (more of a gray area) the general COMBINATION of characters, plots, names, etc. Once works fall out of copyright, the CHARACTERS can still remain protected if they've been trade-marked. In that case, you're free to republish the old works, but you wouldn't be able to create new works using those trade-marked characters without getting permission from the trade-mark holders (I believe Tarzan would be an example of that, but I'm not sure).

[Elfwreck]

Originally Posted by DMcCunney

Sure. But Kurtz didn't give consent, and couldn't simply ignore the infringement. As far as I know, she was required to go after the fans. Filing suit is not something she wanted to spend time and money doing. Sufficient for copyright that you go after infringement you are aware of. You aren't expected to spend all your time looking for infringement - only to make an effort when you become aware of it. But as far as I know, if you are aware of infringement and don't take action, you can jeopardize your rights.

I don't believe that's true. I believe that the copyright owner has the right to say "I'm not prosecuting that; it has my permission to continue"--without losing the right to prosecute any future infringements.

Do you know of any cases or laws that indicate you lose copyright control if you don't enforce it? (Surely the RIAA victims would be happy to use that as a supporting detail in court, if it were true.)

I believe that either Kurtz got bad legal advice from someone who doesn't understand the difference between trademark and copyright--or she was upset at the idea of fans profiting from their love of her work, and wanted to stop them.

[DMcCunney]

Originally Posted by Elfwreck

I don't believe that's true. I believe that the copyright owner has the right to say "I'm not prosecuting that; it has my permission to continue"--without losing the right to prosecute any future infringements.

What if it doesn't have your permission to continue? What do you do to stop it?

I believe that either Kurtz got bad legal advice from someone who doesn't understand the difference between trademark and copyright--or she was upset at the idea of fans profiting from their love of her work, and wanted to stop them.

Possible in both cases. It was a while back, and I don't really know.

But you seem to be saying Katherine should have just ignored it because her rights weren't threatened. Personally, if someone asks me for permission to do something I have control over, I say "no", and they go ahead and do it anyway, I'll be more that a bit peeved, and perhaps aggravated enough to break out the attack lawyers. If someone actually asks me for permission, I assume they'll take no for an answer. If they don't, I'll do things to convince them I meant "No!"

No, I'm not aware of case law you're curious about. I'm not a lawyer, and going on memory. It's possible I'm wrong, but from what I know at the moment, I don't think so. If you can point me at case law supporting your view, I'll be grateful.
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Dennis

[DMcCunney]

Originally Posted by ekaser

Correct. To further clarify that particular situation, the reason many authors do not want to let fans write and publish stories based upon their characters and 'worlds' is that those same fans can turn around and sue the author in the future if the author writes a story that is in any way similar to stories the fans wrote. (They may not WIN, but they MIGHT, and the author still has to defend against the suit.)

Anne McCaffrey allows fans to write fiction set in her Pern universe, but insists the stories be copyrighted in her name as well as the author's to defend against just that sort of problem.

For that matter, Joe Straczynski had the Babylon 5 episode "Passing through Gethsemane" written a year before it got produced. the problem was that a fan on a Compuserve message board had posted a story idea close enough to it that Joe felt compelled to track him down and get a signed legal release before producing the script, to avoid potential problems. (And it's why Joe said again and again online "Don't post story ideas! If you do, I have to stop participating here because of liability problems!"
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Dennis