4 ms·

The really funny thing about Xanadu is that unlimited transclusion is not how copyright works. If you buy two movies, you don't get the right to publish an edit

The really funny thing about Xanadu is that unlimited transclusion is not how copyright works. If you buy two movies, you don't get the right to publish an edit list that stitches the movies together. That itself violates copyright. In fact, you aren't even allowed to open the movie up in an editor (unless you break DMCA 1201). Artists are very much accustomed to not only controlling the market for copies of their work, but also remixes of their work, which are licensed separately and cost far more money than mere copies.

kragen 5y ago
This is by and large false, but it's somewhat less profoundly false than it was in 01984. Referring to copyrighted works has never been a right restricted by copyright, and in the US copyright system transformative use ("remixing") weighs heavily in favor of a finding of fair use, which makes copyright infringement legal. There are also a number of compulsory licensing provisions in the existing copyright law to, for example, permit covering a song you don't have copyright to, whether the copyright holder likes it or not.
- kmeisthax 5y ago
  A Xanadu transclude - or the moral equivalents in HTML today - isn't the same as merely a "reference", like an HTML link or a citation footnote in a book. The latter just tells you to go look at another thing; but what Xanadu wanted was that the system would create a whole work out of your additions and the original work (in the same way that, say, a dynamic linker would). This isn't a reference, it's a copy, and the argument then comes down to where the copying actually happens and who should be liable for it. That being said, while looking for court cases that supported "transclusion equals derivative work", it turns out this is actually more contentious among actual judges than I thought. If you ask the 9th Circuit, embedding by reference doesn't violate copyright because infringement is stored in the server[0]. If you ask other courts this is obviously wrong[1]. My gut feeling is still that the 9th is wrong on this, because embedding by reference not tripping copyright opens up a huge loophole in the law[2]. Think about how many low-effort articles are just "X is going viral" plus an embed of X - that's exactly the sort of behavior copyright is intended to prohibit. And given that we live with a legal regime that's obsessed in drowning the world in "innovation" and "intellectual property", I don't see how "evade licensing photos by just embedding them off the photographer's Instagram" is going to stay legal. Putting that aside, if a reuse of a work by transclusion fell under Fair Use, then you wouldn't need the Xanadu payment system in order to license it anyway. You would be free to just reupload the portions of the work being fairly reused and not pay. So even if paid transclusion wiped away infringement, it would still be a tax on fair users (in the same way that YouTube Content ID is). Compulsory licensing probably wouldn't matter much as copyright has very few situations in which you can purchase such a license. The ability to refuse to sell a license at any price is considered a key feature of the law by the copyright maximalists. [0] https://www.reuters.com/legal/transactional/instagram-dodges-photogs-copyright-lawsuit-over-embedding-feature-2021-09-20/ https://www.reuters.com/legal/transactional/instagram-dodges... [1] https://www.reuters.com/legal/transactional/manhattan-judge-rejects-server-test-internet-copyright-infringement-2021-07-30/ https://www.reuters.com/legal/transactional/manhattan-judge-... https://www.reuters.com/article/legal-us-otc-panic/n-y-judge-says-embedded-tweets-may-violate-copyrights-but-dont-panic-idUSKCN1G02L8 https://www.reuters.com/article/legal-us-otc-panic/n-y-judge...
  - kragen 5y ago
    I think Xanadu's business plan here was to only host works by authors who were willing to contractually permit unrestricted transclusion and get paid for it. I agree that the setup would tax fair use, but I'm sure that wouldn't have prevented it from being financially viable or legal. Not shipping a working product is what prevented that.

kragen 5y ago

This is by and large false, but it's somewhat less profoundly false than it was in 01984. Referring to copyrighted works has never been a right restricted by copyright, and in the US copyright system transformative use ("remixing") weighs heavily in favor of a finding of fair use, which makes copyright infringement legal. There are also a number of compulsory licensing provisions in the existing copyright law to, for example, permit covering a song you don't have copyright to, whether the copyright holder likes it or not.

kmeisthax 5y ago
A Xanadu transclude - or the moral equivalents in HTML today - isn't the same as merely a "reference", like an HTML link or a citation footnote in a book. The latter just tells you to go look at another thing; but what Xanadu wanted was that the system would create a whole work out of your additions and the original work (in the same way that, say, a dynamic linker would). This isn't a reference, it's a copy, and the argument then comes down to where the copying actually happens and who should be liable for it. That being said, while looking for court cases that supported "transclusion equals derivative work", it turns out this is actually more contentious among actual judges than I thought. If you ask the 9th Circuit, embedding by reference doesn't violate copyright because infringement is stored in the server[0]. If you ask other courts this is obviously wrong[1]. My gut feeling is still that the 9th is wrong on this, because embedding by reference not tripping copyright opens up a huge loophole in the law[2]. Think about how many low-effort articles are just "X is going viral" plus an embed of X - that's exactly the sort of behavior copyright is intended to prohibit. And given that we live with a legal regime that's obsessed in drowning the world in "innovation" and "intellectual property", I don't see how "evade licensing photos by just embedding them off the photographer's Instagram" is going to stay legal. Putting that aside, if a reuse of a work by transclusion fell under Fair Use, then you wouldn't need the Xanadu payment system in order to license it anyway. You would be free to just reupload the portions of the work being fairly reused and not pay. So even if paid transclusion wiped away infringement, it would still be a tax on fair users (in the same way that YouTube Content ID is). Compulsory licensing probably wouldn't matter much as copyright has very few situations in which you can purchase such a license. The ability to refuse to sell a license at any price is considered a key feature of the law by the copyright maximalists. [0] https://www.reuters.com/legal/transactional/instagram-dodges-photogs-copyright-lawsuit-over-embedding-feature-2021-09-20/ https://www.reuters.com/legal/transactional/instagram-dodges... [1] https://www.reuters.com/legal/transactional/manhattan-judge-rejects-server-test-internet-copyright-infringement-2021-07-30/ https://www.reuters.com/legal/transactional/manhattan-judge-... https://www.reuters.com/article/legal-us-otc-panic/n-y-judge-says-embedded-tweets-may-violate-copyrights-but-dont-panic-idUSKCN1G02L8 https://www.reuters.com/article/legal-us-otc-panic/n-y-judge...
- kragen 5y ago
  I think Xanadu's business plan here was to only host works by authors who were willing to contractually permit unrestricted transclusion and get paid for it. I agree that the setup would tax fair use, but I'm sure that wouldn't have prevented it from being financially viable or legal. Not shipping a working product is what prevented that.