From the Mises blog; archived comments below.
If you oppose IP and don’t want a patent–just don’t apply. Unfortunately, someone else might independently invent the same thing, patent it, and shut you down, since your having invented it first, or independently invented it, is no defense. So, you might also want to lower your knickers and reveal your idea publicly, to lower the chance someone else can patent it (this is called defensive patent publishing).1
But if you don’t want copyright, you’re out of luck. Under the current law, copyright is received automatically. Contrary to popular wisdom, you don’t “copyright” something. It’s not a verb. You don’t need to put a copyright notice on your work. You don’t need to register it. It’s automatic. And there’s nothing you can do about it. (See “Copyright Is Very Sticky!“) This makes it often impossible to know who the owner of a given work is or who to approach to ask permission; it contributes to the “orphan works” problem as well–where older works still apparently under copyright fall into obscurity because the copyright owner is unknown or cannot be found for permission to republish.
Thus, some of us would prefer a return to the older law.2 Previously US law required a copyright notice and even registration to obtain copyright. But the US acceded to the Berne Convention in 1989, which forbids such “formalities,” making copyright protection automatic. The US is therefore unable to revise copyright law to make it “opt-in” instead of opt-out, because this would violate international obligations.
But we do not even have an opt-out system, since, as noted, copyright is automatic, and there is no way to get rid of it. Snide commentators sometimes say, “if you are against IP why do you copyright your works?” or “why don’t you just waive your rights?” Well we don’t copyright our works–your system does. And your system does not allow us to waive our rights. There is no way to make a copyright-protected work public domain. The closest thing to it is CC0, but this cannot “guarantee a complete relinquishment of all copyright and database rights in every jurisdiction”.
So why not reform copyright law to at least legalize creative-commons type licenses, including CC0–let us opt out if we want to!
- April 12, 2011 at 2:09 am
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Actually, there is no such thing as an “international obligation.” If Congress had the political will, it could repeal the Berne Convention and restore the previous copyright laws. The United States Congress is unable to change the copyright laws so long as they remain part of the Berne Convention, which we can leave at any time.
Although I agree with your opposition to all IP, I would be happy if Congress restored the original Copyright Act, which limited copyright to 2 14-year terms (with a renewal required to get the 2nd term) and limited copyright to specific types of works produced by Americans (works produced by foreigners were automatically public domain in the United States).
- April 12, 2011 at 3:07 am
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The treaty itself is what causes the ‘international obligation’.
Having the ability to get rid of the treaty and thus remove the international obligation is hardly the same as having no international obligations at all.
- April 12, 2011 at 4:16 pm
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It is not necessary to return to the original Copyright Act (by repealing Berne) to restore balance. We could instead offer limited automatic copyright under Berne with the option to extend copyright through the registration process for a longer period (for example, re-registration every 10 years until some maximum time).
This would ensure that creative works with limited commercial interest enter the public domain relatively quickly, while ensuring that works which have commercial value are maintained. Works which are not re-registered would enter the public domain automatically when the term expires.
This approach also produces the added benefit that expired works are provably and irrevocably in the public domain. This will go far to prevent abuses such as NAB asserting “rebroadcast copyright” over public domain works.
- April 12, 2011 at 2:42 am
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Stephan,
Don’t be ridiculous. You want even more contradictions in the statute? Your suggestion would be like arbitrary keeping right or left in traffic law. Or in your sacred cow, homesteading, absolutely no rules who claims what. After all, why should I accept your totally arbitrary rules of homesteading. Just because you claim to be the authentic Libertarian?- April 12, 2011 at 3:05 am
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The reality of things like copyright is that there is no fundamental concepts or logic behind it. It’s something born out of censorship and it continues to this day because of a theory that it provides economic benefit to the nation.
It’s nothing but a mess of contradictions and violations of liberty. Adding some more contradictions in a effort to limit the damage that is happening to society is hardly a bad thing to suggest. Obviously scrapping the whole thing would be superior (and thus getting rid of the contradictions and other BS), but that’s not something that is going to happen anytime soon due to the nature of politics and the level of delusion of what really is the effect and purposes of ‘copyright’ that most people seem to operate under.
- April 12, 2011 at 12:31 pm
- April 22, 2011 at 4:14 am
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Andras,
homesteading is based on the physical attributes of the world, such as volume or location. IP is based on the subjective human interpretations of the world, such as meaning and value. Of course, we can never avoid arbitrariness fully, just like we need to arbitrarily define the kilogram, meter, Kelvin, second or radian. But that is hardly an argument that one would make to equate astronomy (based on the physical attributes of phenomena) and astrology (based on meaning of those attributes).
Furthermore, the approaches contradict each other.
- April 12, 2011 at 3:13 am
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If there’s one key thing I disagree with Kinsella on it’s CC0. There is nothing wrong with it, there is the license fallback system to protect it, and as for the other Creative Commons licenses, like the GPL you are subject to the will of the organization’s management.
GPL proved this when GPLv3 (at the decision of the Free Software Foundation’s management) came out in 2006 and was forced on people who didn’t think of taking the upgrade clause out of the 1991 GPLv2 template.
Creative Commons does not force an upgrade so they say, but international treaty might force Creative Commons to act, and people will be forced to accept Creative Commons’ then-lawyers and adopt a new license, which perhaps could be not-so-permissive or require an update. What disturbs me the most is recent versions of ShareAlike, which allows Creative Commons Inc. to relicense your works the organization deems “in the spirit of the original licenses” (no such licenses have been chosen, but note the FSF screw-job above)
What exactly do you mean by “legalize” Creative Commons? How are the licenses “illegal”? I would be careful not to give ASCAP any credibility to their bogus claims.
- April 12, 2011 at 3:35 am
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and as for the other Creative Commons licenses, like the GPL you are subject to the will of the organization’s management.
The GPL is not a Creative Commons license. Creative Commons licenses are a series of licensing suggestions that a author can choose to adopt different features of for different purposes.
http://en.wikipedia.org/wiki/Creative_Commons
Like there is Creative Common licenses that allow for derivative non-commercial works. There is Creative Common licenses that allow for commercial derivatives, but only if they give credit to the original author. Stuff like that. The ‘CC0′ is a specific version of Creative Commons were the author surrenders as much copyright restrictions as possible.
GPL is not part of that family of licenses.
GPL proved this when GPLv3 (at the decision of the Free Software Foundation’s management) came out in 2006 and was forced on people.
It did nothing of the sort. Programmers were absolutely free to choose whether or not to give FSF discretion on licensing upgrades to the GPL. Nothing was hidden and nothing was forced on anybody. Plenty of people choosing to use ‘GPLv2 only’ proves this.
Your really being ignorant here or are being intentionally misleading.
What exactly do you mean by “legalize” Creative Commons? How are the licenses “illegal”? I would be careful not to give ASCAP any credibility to their bogus claims.
Unless your able to obtain clarification on the license of something that is considered ‘original work’ by USA copyright law then you are forced, due to liability concerns, to assume that everything defaults back to full copyright restrictions.
Gaining clarification can be very expensive and given that ‘derivative works’ tends to be viral this can put people creating complex works, that will invariably incorporate other ‘original works’ from disparate sources, in very difficult position. If they cannot afford to spend the time and money necessary to get clarification on copyrights, or they are unable to determine this even if they did spend the money and time, then they cannot take advantage much of the creative history of works that people have created in the past 75-100 years or so… even if nobody is ever going to seek licensing terms for it.
If your going to have copyright it is much saner to have things ‘default to liberty’ rather then ‘default to liability’.
- April 12, 2011 at 5:55 am
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“Programmers were absolutely free to choose whether or not to give FSF discretion on licensing upgrades to the GPL. Nothing was hidden and nothing was forced on anybody. Plenty of people choosing to use ‘GPLv2 only’ proves this.”
Absolutely correct.
- April 12, 2011 at 12:33 pm
- April 13, 2011 at 8:31 pm
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In regards to the GPL, the relevant clause is “or (at your option) any later version”; this just means that any GPL-licensed software is effectively multilicensed under the version it was released under and every one after that. There are plenty of projects that strike that clause(such as the bulk of the Linux kernel codebase) and it’s even permissible to strike it after you initially included it.
- April 12, 2011 at 6:21 am
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I have a better idea. Let’s make the whole IP opt-out. If you support IP, you can use it to “protect” yourself but need to respect other people’s IP too. If you don’t support it, you cannot use it to “protect” yourself but also do not need to respect other people’s IP. Quid pro quo.
- April 12, 2011 at 10:08 am
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When posting images to sites like Picasa, users can choose among Public Domain and several Creative Commons options. What is the significant difference between PD and CC0?
- See Google’s Defensive Patent Acquisition; Prior User Rights and Patent Reform; Jefferson on Anonymous Defensive Patent Publishing; Defensive Patent Publishing. [↩]
- See my Reducing the Cost of IP Law, proposing copyright law be reformed to “Require active registration and periodic re-registration (for a modest fee) and copyright notice to maintain copyright”. [↩]
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