7 ms·

I can see troubling consequences that arise from both sides' arguments. If private companies can hold copyrights on portions of the law, that inhibits access t

by jawns 10y ago

I can see troubling consequences that arise from both sides' arguments. If private companies can hold copyrights on portions of the law, that inhibits access to those laws, and I think any reasonable person would agree that citizens have a basic right to access the text of laws and legally binding regulations, and paywalls or other restrictions conflict with that right. But if the government can essentially revoke a private individual or company's copyright merely by incorporating otherwise protected text into legislation, that can have adverse effects on copyright holders. And it would be interesting to see just how far you could stretch a claim on both sides. For instance, let's say that a law specifies that vehicles used by some governmental department must be maintained according to the specifications in their respective owners' manuals. Could that be argued to be a type of "incorporation by reference" of the specifications, thus voiding the copyright of the owners' manuals? Or what if a private company tried to impose absurd restrictions on accessing copyrighted material that has been incorporated by reference, such that even the governmental agencies charged with enforcing the law were unable to access it? Could that be a way of subverting the law? Or what if a lawmaker has it out for a particular publisher or writer, and purposefully quotes their copyrighted texts (beyond what would typically be considered fair use) in legislation as a way of damaging their copyright? And if it is the case that nonprofit groups that devise standards for public safety and device interoperability are deprived of their copyrights because those standards are incorporated into legislation, I would imagine it would disincentivize the work they do, perhaps leading to less well thought out public safety and device interoperability standards.

Zigurd 10y ago
Copyright isn't a right. Unlike actual rights it can be nullified by legislation, without recourse. Those nonprofits you mention operate just fine without holding copyright in many cases.
- cestith 10y ago
  Copyright is simply the right to the fruits of one's own labors to be exclusive for some amount of time. I'd say that's a moral and ethical right. Just because you write novels or develop software rather than build houses or cars doesn't mean you should be deprived of making a living because others are free to duplicate your work with little to no expense, expertise, or time spent doing so.
  - Zigurd 10y ago
    Here is the difference: The constitution authorizes the legislature to grant limited-term monopolies to inventors and creators. But that isn't an obligation, and there is no underlying constitutional right. "Limited" could mean a week. It's completely up to the legislature. In contrast, a law authorizing property seizure without compensation, or even an expiration date on property rights, would be unconstitutional. All copyright and patent protections expire.
    - cestith 10y ago
      They only expire because of an overwhelming public interest. Otherwise the very idea of them being property that can be created, bought, and sold would allow their owners the same rights as other property owners. They can expire your novel because it's useful (hopefully) to culture, but they can't expire your physical book except under exceptional circumstances.
      - Zigurd 10y ago
        I don't think that makes sense. They expire because they are disclosed, i.e. published, manufactured and sold, etc. Without a government granted and enforced monopoly, creators and inventors would have no protection against being immediately copied without compensation. There is no question of a "right" in this. It's a government granted monopoly, explicitly authorized in the constitution because, otherwise, such monopolies were considered abhorrent. In that, it is a unique part of the US constitution, and does not resemble in any way the rights protected by other parts of the constitution.
LordKano 10y ago
The only reason why copyright exists is for the benefit of society. If copyright is ever used to the detriment of society, an adjustment is in order.
- wu-ikkyu 10y ago
  At what point in history would you say patent laws became beneficial to society? Patent law was created as a way for oligarchs to maintain economic power over their subjects[1], and it is still used as such[2]. [1]https://en.m.wikipedia.org/wiki/Patent_roll https://en.m.wikipedia.org/wiki/Patent_roll [2]https://en.m.wikipedia.org/wiki/Patent_troll https://en.m.wikipedia.org/wiki/Patent_troll
  - yaks_hairbrush 10y ago
    Patents represent a deal: You publish specifications, and society will grant you exclusive use for X years. Thankfully, unlike their copyright cousins, patent laws have not seen an increase in X. This serves to prevent knowledge from being locked away as trade secrets. Beneficial to society? Drug companies have patents, and patents expire. Upon expiration, generics become available because the synthesis of the drugs is public knowledge, which creates a competitive market and lowers the price. Without patents, the drug companies could (modulo other regulations) keep synthesis of their chemicals a trade secret, which may not be replicable in a reasonable time-frame.
upofadown 10y ago
>But if the government can essentially revoke a private individual or company's copyright merely by incorporating otherwise protected text into legislation, that can have adverse effects on copyright holders. I don't know if this is actually being proposed as a possible solution. It might be enough to prevent governments from doing the reference in the first place. Then it would be up to the government to negotiate public access to to any standards they wanted to make law. There is a commonly used approximation used to compensate for the change in density of various retail petroleum products with temperature. In my country we have a law covering how such compensation is to be done at the retail level. That law is a reference to a standard behind a pay and weirdness wall. In Belgium they have the same sort of law, but the actual function is right there in the law, in standard mathematical notation.
Angostura 10y ago
Indeed. I think the pragmatic reponse is to say that from now on laws shouldn't be able to incorporate by reference works that aren't freely licensed. That means that law makers would have to create their own work (perhaps based on the concepts in the trade group's documents). If the trade groups wanted regulations to reflect their work exactly, they would have to freely license, at which point they could be referenced.
- kefka 10y ago
  "Our works are free. But you have to contact an unlisted phone number, at a specified time we don't state, to a man who is only authorized to grant access when funds are available. And the times of access are limited to 100 hours per month, or less when restricted. And the location in which to meet is in the capitol at a building with no parking, and the hardest to get to. Or you can buy the code for the low price of $4999 . Printing fees, and all that."
  - Spivak 10y ago
    That may very well happen but you could just demand that a copy of any referenced work must appear along with the published law.
  - Angostura 10y ago
    That would fit the definition of 'freely licensed'
adekok 10y ago
> But if the government can essentially revoke a private individual or company's copyright merely by incorporating otherwise protected text into legislation, that can have adverse effects on copyright holders. How about: a) voluntarily giving up copyright if you want your text to become law. or b) not making law out of propriety, private, copyrighted works. The reality is that secret laws are bad. We've known this as a society for millenia: http://www.crystalinks.com/romelaw.html http://www.crystalinks.com/romelaw.html Those laws were published publicly where anyone could read them.
- vkreso 10y ago
  > http://www.crystalinks.com/romelaw.html http://www.crystalinks.com/romelaw.html Lovely link! I find the subject of Roman law fascinating. I'd argue that the reception of it throughout the centuries after the fall of the Roman state (most importantly it's dissemination) helped formed the basis of the modern European identity. Also, fun fact: Roman law has been heavily studied in Japan since after it entered Japanese law as part of the Meiji restoration, so today Japan is one of the centers of Romanist studies.
lmm 10y ago
> let's say that a law specifies that vehicles used by some governmental department must be maintained according to the specifications in their respective owners' manuals. Could that be argued to be a type of "incorporation by reference" of the specifications, thus voiding the copyright of the owners' manuals? No great loss if it does. I don't imagine car manufacturers regard manuals as a profit center. > what if a private company tried to impose absurd restrictions on accessing copyrighted material that has been incorporated by reference, such that even the governmental agencies charged with enforcing the law were unable to access it? Could that be a way of subverting the law? The courts tends to be pretty good at dealing with people who try to mess with them through this kind of technicality. > Or what if a lawmaker has it out for a particular publisher or writer, and purposefully quotes their copyrighted texts (beyond what would typically be considered fair use) in legislation as a way of damaging their copyright? > And if it is the case that nonprofit groups that devise standards for public safety and device interoperability are deprived of their copyrights because those standards are incorporated into legislation, I would imagine it would disincentivize the work they do, perhaps leading to less well thought out public safety and device interoperability standards. Hmm. Perhaps lawmakers should have to license materials they want to incorporate, or seize them with compensation via an eminent domain-like process.
fictioncircle 10y ago
> I can see troubling consequences that arise from both sides' arguments. It is because its legal arguments. In reality, laws should not be written as copies of material where the IP is not owned by the government. Anyone who does not comply with that should have their law removed from the books.
clamprecht 10y ago
> For instance, let's say that a law specifies that vehicles used by some governmental department must be maintained according to the specifications in their respective owners' manuals. I think this is how it works with aircraft. The manufacturer issues at POH (Pilot Operating Handbook), and the pilot must operate the aircraft in accordance with this POH. Also the pilot is required to have the POH available in the aircraft anytime it is being flown. More info on the POH/AFM: https://www.faa.gov/regulations_policies/handbooks_manuals/aviation/phak/media/11_phak_ch9.pdf https://www.faa.gov/regulations_policies/handbooks_manuals/a...
manarth 10y ago
what if a lawmaker has it out for a particular publisher or writer, and purposefully quotes their copyrighted texts in legislation Technically, this ability already exists in some ways. Parliamentary Privilege [1] allows members of parliament to speak freely without fear of legal sanction. As a result of a defamation case brought against Hansard [2] in the 19th century, parliamentary publications (e.g. a transcript from parliament) are also protected by absolute privilege [3]. That's UK law, but it's a common template for Westminster-system style legislatures. So a law-maker could read out a book in its entirety, which could then be published in its entirety as a transcript of parliamentary publications. It's social norms and conventions on parliamentary behaviour that prevent its abuse, rather than copyright law. [1] https://en.wikipedia.org/wiki/Parliamentary_privilege https://en.wikipedia.org/wiki/Parliamentary_privilege [2] https://en.wikipedia.org/wiki/Hansard https://en.wikipedia.org/wiki/Hansard [3] https://en.wikipedia.org/wiki/Parliamentary_Papers_Act_1840 https://en.wikipedia.org/wiki/Parliamentary_Papers_Act_1840 (edit: typo)
fiatmoney 10y ago
"But if the government can essentially revoke a private individual or company's copyright merely by incorporating otherwise protected text into legislation, that can have adverse effects on copyright holders." This is a settled area of law; revoking the copyright would be a "taking", inarguably for the public good, and the copyright holder would be entitled to just compensation. IMO that is the appropriate way to handle this issue; effectively the government uses eminent domain to seize the copyright.
- dv_dt 10y ago
  > the copyright holder would be entitled to just compensation. I would suggest that for a lot of organizations whose code has become written into laws, the organizations actually benefit from their incorporation even if they were to be required to release the copyright. They may lose some 'access-control' revenue from release of the copyright, but overall their closeness to the rules gives them ample opportunity to make money from associated services (e.g. training, consulting, membership and influence on revisions to name a few).
djsumdog 10y ago
The moment it becomes a law, it should become a work of the Federal Government. If they draft it as a law, and it becomes a law, it should enter the standard of non-copyrightable public works (as we see on wikipedia for many releases from the federal government). We're also ignoring something really troubling in this entire situation: the fact that private entities and lobbyists are drafting so much of our legislation (typically for their benefit). Sure there are some things like safety standards that I can see as best being worked on by several trade groups, but there is a considerable about of legislation drafted by banks, security firms and defense contractors that directly benefits those industries at the expense of the people. Let's not forget the 2008 financial crisis, that was created by much of this type of legislation. Many of those banks committed outright fraud: https://www.youtube.com/watch?v=6khYSTqHrqM https://www.youtube.com/watch?v=6khYSTqHrqM ..and none of those people from the bottom to the top, have never been charged with crimes. As they write more laws, they make the types of corruption they often engage in, legal.
sharemywin 10y ago
Sue the government for taking your copyright.
cestith 10y ago
Ignorance of the law is an excuse if the law costs a license fee. That's the biggest problem.
TheCoelacanth 10y ago
> But if the government can essentially revoke a private individual or company's copyright merely by incorporating otherwise protected text into legislation, that can have adverse effects on copyright holders. I don't see a problem with that. Copyright is a privilege granted by the government. If the government wants to revoke that privilege that is their prerogative.
- hobarrera 10y ago
  > Copyright is a privilege granted by the government. AFAIK, it's actually "Copyright is a privilege RECOGNIZED by the government.". I'd be surprised if if was the other way around in the US.
  - TheCoelacanth 10y ago
    The US constitution states otherwise. It says that Congress is allowed (not required) to grant limited time copyrights to promote the useful arts and sciences. That seems to make it quite explicit that copyright is granted by the government and not just recognized by it.

by jawns 10y ago

Zigurd 10y ago

Copyright isn't a right. Unlike actual rights it can be nullified by legislation, without recourse. Those nonprofits you mention operate just fine without holding copyright in many cases.

cestith 10y ago
Copyright is simply the right to the fruits of one's own labors to be exclusive for some amount of time. I'd say that's a moral and ethical right. Just because you write novels or develop software rather than build houses or cars doesn't mean you should be deprived of making a living because others are free to duplicate your work with little to no expense, expertise, or time spent doing so.
- Zigurd 10y ago
  Here is the difference: The constitution authorizes the legislature to grant limited-term monopolies to inventors and creators. But that isn't an obligation, and there is no underlying constitutional right. "Limited" could mean a week. It's completely up to the legislature. In contrast, a law authorizing property seizure without compensation, or even an expiration date on property rights, would be unconstitutional. All copyright and patent protections expire.
  - cestith 10y ago
    They only expire because of an overwhelming public interest. Otherwise the very idea of them being property that can be created, bought, and sold would allow their owners the same rights as other property owners. They can expire your novel because it's useful (hopefully) to culture, but they can't expire your physical book except under exceptional circumstances.
    - Zigurd 10y ago
      I don't think that makes sense. They expire because they are disclosed, i.e. published, manufactured and sold, etc. Without a government granted and enforced monopoly, creators and inventors would have no protection against being immediately copied without compensation. There is no question of a "right" in this. It's a government granted monopoly, explicitly authorized in the constitution because, otherwise, such monopolies were considered abhorrent. In that, it is a unique part of the US constitution, and does not resemble in any way the rights protected by other parts of the constitution.

LordKano 10y ago

The only reason why copyright exists is for the benefit of society. If copyright is ever used to the detriment of society, an adjustment is in order.

wu-ikkyu 10y ago
At what point in history would you say patent laws became beneficial to society? Patent law was created as a way for oligarchs to maintain economic power over their subjects[1], and it is still used as such[2]. [1]https://en.m.wikipedia.org/wiki/Patent_roll https://en.m.wikipedia.org/wiki/Patent_roll [2]https://en.m.wikipedia.org/wiki/Patent_troll https://en.m.wikipedia.org/wiki/Patent_troll
- yaks_hairbrush 10y ago
  Patents represent a deal: You publish specifications, and society will grant you exclusive use for X years. Thankfully, unlike their copyright cousins, patent laws have not seen an increase in X. This serves to prevent knowledge from being locked away as trade secrets. Beneficial to society? Drug companies have patents, and patents expire. Upon expiration, generics become available because the synthesis of the drugs is public knowledge, which creates a competitive market and lowers the price. Without patents, the drug companies could (modulo other regulations) keep synthesis of their chemicals a trade secret, which may not be replicable in a reasonable time-frame.

upofadown 10y ago

>But if the government can essentially revoke a private individual or company's copyright merely by incorporating otherwise protected text into legislation, that can have adverse effects on copyright holders. I don't know if this is actually being proposed as a possible solution. It might be enough to prevent governments from doing the reference in the first place. Then it would be up to the government to negotiate public access to to any standards they wanted to make law. There is a commonly used approximation used to compensate for the change in density of various retail petroleum products with temperature. In my country we have a law covering how such compensation is to be done at the retail level. That law is a reference to a standard behind a pay and weirdness wall. In Belgium they have the same sort of law, but the actual function is right there in the law, in standard mathematical notation.

Angostura 10y ago

Indeed. I think the pragmatic reponse is to say that from now on laws shouldn't be able to incorporate by reference works that aren't freely licensed. That means that law makers would have to create their own work (perhaps based on the concepts in the trade group's documents). If the trade groups wanted regulations to reflect their work exactly, they would have to freely license, at which point they could be referenced.

kefka 10y ago
"Our works are free. But you have to contact an unlisted phone number, at a specified time we don't state, to a man who is only authorized to grant access when funds are available. And the times of access are limited to 100 hours per month, or less when restricted. And the location in which to meet is in the capitol at a building with no parking, and the hardest to get to. Or you can buy the code for the low price of $4999 . Printing fees, and all that."
- Spivak 10y ago
  That may very well happen but you could just demand that a copy of any referenced work must appear along with the published law.
- Angostura 10y ago
  That would fit the definition of 'freely licensed'

adekok 10y ago

> But if the government can essentially revoke a private individual or company's copyright merely by incorporating otherwise protected text into legislation, that can have adverse effects on copyright holders. How about: a) voluntarily giving up copyright if you want your text to become law. or b) not making law out of propriety, private, copyrighted works. The reality is that secret laws are bad. We've known this as a society for millenia: http://www.crystalinks.com/romelaw.html http://www.crystalinks.com/romelaw.html Those laws were published publicly where anyone could read them.

vkreso 10y ago
> http://www.crystalinks.com/romelaw.html http://www.crystalinks.com/romelaw.html Lovely link! I find the subject of Roman law fascinating. I'd argue that the reception of it throughout the centuries after the fall of the Roman state (most importantly it's dissemination) helped formed the basis of the modern European identity. Also, fun fact: Roman law has been heavily studied in Japan since after it entered Japanese law as part of the Meiji restoration, so today Japan is one of the centers of Romanist studies.

lmm 10y ago

> let's say that a law specifies that vehicles used by some governmental department must be maintained according to the specifications in their respective owners' manuals. Could that be argued to be a type of "incorporation by reference" of the specifications, thus voiding the copyright of the owners' manuals? No great loss if it does. I don't imagine car manufacturers regard manuals as a profit center. > what if a private company tried to impose absurd restrictions on accessing copyrighted material that has been incorporated by reference, such that even the governmental agencies charged with enforcing the law were unable to access it? Could that be a way of subverting the law? The courts tends to be pretty good at dealing with people who try to mess with them through this kind of technicality. > Or what if a lawmaker has it out for a particular publisher or writer, and purposefully quotes their copyrighted texts (beyond what would typically be considered fair use) in legislation as a way of damaging their copyright? > And if it is the case that nonprofit groups that devise standards for public safety and device interoperability are deprived of their copyrights because those standards are incorporated into legislation, I would imagine it would disincentivize the work they do, perhaps leading to less well thought out public safety and device interoperability standards. Hmm. Perhaps lawmakers should have to license materials they want to incorporate, or seize them with compensation via an eminent domain-like process.

fictioncircle 10y ago

> I can see troubling consequences that arise from both sides' arguments. It is because its legal arguments. In reality, laws should not be written as copies of material where the IP is not owned by the government. Anyone who does not comply with that should have their law removed from the books.

clamprecht 10y ago

> For instance, let's say that a law specifies that vehicles used by some governmental department must be maintained according to the specifications in their respective owners' manuals. I think this is how it works with aircraft. The manufacturer issues at POH (Pilot Operating Handbook), and the pilot must operate the aircraft in accordance with this POH. Also the pilot is required to have the POH available in the aircraft anytime it is being flown. More info on the POH/AFM: https://www.faa.gov/regulations_policies/handbooks_manuals/aviation/phak/media/11_phak_ch9.pdf https://www.faa.gov/regulations_policies/handbooks_manuals/a...

manarth 10y ago

what if a lawmaker has it out for a particular publisher or writer, and purposefully quotes their copyrighted texts in legislation Technically, this ability already exists in some ways. Parliamentary Privilege [1] allows members of parliament to speak freely without fear of legal sanction. As a result of a defamation case brought against Hansard [2] in the 19th century, parliamentary publications (e.g. a transcript from parliament) are also protected by absolute privilege [3]. That's UK law, but it's a common template for Westminster-system style legislatures. So a law-maker could read out a book in its entirety, which could then be published in its entirety as a transcript of parliamentary publications. It's social norms and conventions on parliamentary behaviour that prevent its abuse, rather than copyright law. [1] https://en.wikipedia.org/wiki/Parliamentary_privilege https://en.wikipedia.org/wiki/Parliamentary_privilege [2] https://en.wikipedia.org/wiki/Hansard https://en.wikipedia.org/wiki/Hansard [3] https://en.wikipedia.org/wiki/Parliamentary_Papers_Act_1840 https://en.wikipedia.org/wiki/Parliamentary_Papers_Act_1840 (edit: typo)

fiatmoney 10y ago

"But if the government can essentially revoke a private individual or company's copyright merely by incorporating otherwise protected text into legislation, that can have adverse effects on copyright holders." This is a settled area of law; revoking the copyright would be a "taking", inarguably for the public good, and the copyright holder would be entitled to just compensation. IMO that is the appropriate way to handle this issue; effectively the government uses eminent domain to seize the copyright.

dv_dt 10y ago
> the copyright holder would be entitled to just compensation. I would suggest that for a lot of organizations whose code has become written into laws, the organizations actually benefit from their incorporation even if they were to be required to release the copyright. They may lose some 'access-control' revenue from release of the copyright, but overall their closeness to the rules gives them ample opportunity to make money from associated services (e.g. training, consulting, membership and influence on revisions to name a few).

djsumdog 10y ago

The moment it becomes a law, it should become a work of the Federal Government. If they draft it as a law, and it becomes a law, it should enter the standard of non-copyrightable public works (as we see on wikipedia for many releases from the federal government). We're also ignoring something really troubling in this entire situation: the fact that private entities and lobbyists are drafting so much of our legislation (typically for their benefit). Sure there are some things like safety standards that I can see as best being worked on by several trade groups, but there is a considerable about of legislation drafted by banks, security firms and defense contractors that directly benefits those industries at the expense of the people. Let's not forget the 2008 financial crisis, that was created by much of this type of legislation. Many of those banks committed outright fraud: https://www.youtube.com/watch?v=6khYSTqHrqM https://www.youtube.com/watch?v=6khYSTqHrqM ..and none of those people from the bottom to the top, have never been charged with crimes. As they write more laws, they make the types of corruption they often engage in, legal.

sharemywin 10y ago

Sue the government for taking your copyright.

cestith 10y ago

Ignorance of the law is an excuse if the law costs a license fee. That's the biggest problem.

TheCoelacanth 10y ago

> But if the government can essentially revoke a private individual or company's copyright merely by incorporating otherwise protected text into legislation, that can have adverse effects on copyright holders. I don't see a problem with that. Copyright is a privilege granted by the government. If the government wants to revoke that privilege that is their prerogative.

hobarrera 10y ago
> Copyright is a privilege granted by the government. AFAIK, it's actually "Copyright is a privilege RECOGNIZED by the government.". I'd be surprised if if was the other way around in the US.
- TheCoelacanth 10y ago
  The US constitution states otherwise. It says that Congress is allowed (not required) to grant limited time copyrights to promote the useful arts and sciences. That seems to make it quite explicit that copyright is granted by the government and not just recognized by it.