3 ms·

Copyright myths explained

29 points by bearwithclaws 17y ago

nudded 17y ago
And most importantly you only have the rights on the actual representation of the idea (be it a drawing, a blog post,...) and not the idea itself.
pbhjpbhj 17y ago
There's a spattering of tiny little issues I have throughout the post - perhaps I'll blog about it. I also wish that people commenting on a particular legal jurisdiction would be totally upfront about it - "11 myths about US copyright law" would have been better; thankfully he does not in several places he's talking about US law (though there were no quotes or mentions of caselaw or statute IIRC, except for Berne) He rather belittles moral rights, making them appear to be tacked on, the right to be named as author of your own work IMO should be considered the cornerstone of copyright and is a key part of the Berne Convention adopted in most places outside the USA early in the 1900s.
- ubernostrum 17y ago
  Historically speaking, the modern European conception of moral rights is quite far from being the "cornerstone" of copyright. And with good reason: they raise some rather significant problems which aren't present in jurisdictions which "lack" them.
  - pbhjpbhj 17y ago
    You've piqued my interest, can you follow through: what are the problems of attribution and control over modification (and other moral rights?) that you're thinking of?
    - ubernostrum 17y ago
      Well, to take one example which will be relevant to HN readers: moral rights pose real threats to open source software, since in many jurisdictions which have them they are considered inalienable and can be asserted even when all other rights are licensed freely. Thus, for example, someone who lives in a moral-rights jurisdiction and writes open-source code would still have -- regardless of the terms of the license -- the right to quash particular uses of the software, or the creation of forks. This is why a number of larger open-source-supporting organizations have contributor agreements which include a clause stipulating that contributors will not assert moral rights against the projects to which they contribute. Moral rights also interfere with uses that people in the US can largely take for granted; authors in moral-rights jurisdictions can, for example, quash parodies or satires of their work even if those parodies or satires would otherwise be permitted by the relevant copyright laws.
      - pbhjpbhj 17y ago
        If a coders moral rights are inalienable to the extent that some right can be asserted after he has license away those rights then he cannot create open source software under certain licenses. If he can later demand attribution then he must choose a license that includes teh possibility of attribution - yes I can see this could be a problem. Do you know of any specific jurisdiction in which a creator can't license away the rights needed?
quoderat 17y ago
It's depressing reading this, and realizing how much large corporations have co-opted the entire culture, hurting both individuals and the culture itself. Some of them I don't think are correct, quite, as it's obvious written from a copyright maximalist angle, but I don't have time to quibble with it.
cduan 17y ago
With regard to US copyright law, one important point not mentioned is statutory damages for infringement. Generally, if you are found liable for infringement, you owe "actual damages," that is, the amount of harm you did or profit you gained from the infringement. However, if the copyrighted work was registered, then statutory damages may be available, meaning that you could be liable for up to $200,000, even if you caused no actual damages. My personal opinion is that this leads to a strange imbalance in the copyright law. If an individual makes a creative work (e.g., a blog post) and makes it available for free, the individual is never going to pay the $60 to register the work. So when someone else comes along and rips off the blog post, the individual only wins actual damages, which the other person argues are minimal because the blog post was up for free anyway. But if a big corporation makes a creative work for profit, it expects to make more than $60 off the work, so it registers it. So someone who copies the work is suddenly liable for hundreds or thousands of dollars in statutory damages, regardless of the harm actually done. This seems, to me, to create an unbalanced incentive: works created for profit receive greater protection than works created for free. There are a number of legislative options to fix this, which I will leave to the rest of you to devise.
- fatdog789 17y ago
  You forget that the corporation usually pays for staffing costs of the workers who created this work, plus overhead, plus promotional expenses, and possibly even entered into contracts on the basis of the work. A corporation spends more money to create a creative work, so its actual damages are significantly more -- why should it be forced to swallow those other costs? (Even staffing costs are damages b/c those costs could have gone into some other endeavor). Furthermore, work created for profit receives greater protection precisely b/c of the money interest involved -- if the work was created for free, the presumption is that the creator didn't carry about money, and so is not harmed much by infringement.
  - cduan 17y ago
    You are absolutely right. And when a corporation is damaged in this manner, it has the opportunity to show its actual damages for staffing, promotions, contracts, and everything else. The issue with statutory damages is that they are awarded without regard to actual injury. They act, more or less, as a punishment or deterrent. So even if the corporation truly suffered no damages, it still can receive a few thousand dollars. (Note that taking statutory damages is an option: if your actual damages are higher, you can opt for those instead.) I'm not necessarily saying that statutory damages are a bad thing. The problem I see is the inequality in their distribution: because copyright registration is costly, statutory damages are ultimately only available to the profit-seekers. One possible idea would be to cut out the registration fee, making it easy for everyone to register their works and thereby receive equal protections.
joe_the_user 17y ago
You can pretty reliably predict that any article featuring the terms "myths" is going to be some kind of propaganda... The term is a rhetorical device which assumes that the conceptions you're arguing against are so childish that they don't merit serious discussion. Generally, it is used by some kind of authority trying to re-impose a black-and-white view of things on a complex, shades-of-gray world - "drug myths", etc.

29 points by bearwithclaws 17y ago

And most importantly you only have the rights on the actual representation of the idea (be it a drawing, a blog post,...) and not the idea itself.

pbhjpbhj 17y ago

There's a spattering of tiny little issues I have throughout the post - perhaps I'll blog about it. I also wish that people commenting on a particular legal jurisdiction would be totally upfront about it - "11 myths about US copyright law" would have been better; thankfully he does not in several places he's talking about US law (though there were no quotes or mentions of caselaw or statute IIRC, except for Berne) He rather belittles moral rights, making them appear to be tacked on, the right to be named as author of your own work IMO should be considered the cornerstone of copyright and is a key part of the Berne Convention adopted in most places outside the USA early in the 1900s.

ubernostrum 17y ago
Historically speaking, the modern European conception of moral rights is quite far from being the "cornerstone" of copyright. And with good reason: they raise some rather significant problems which aren't present in jurisdictions which "lack" them.
- pbhjpbhj 17y ago
  You've piqued my interest, can you follow through: what are the problems of attribution and control over modification (and other moral rights?) that you're thinking of?
  - ubernostrum 17y ago
    Well, to take one example which will be relevant to HN readers: moral rights pose real threats to open source software, since in many jurisdictions which have them they are considered inalienable and can be asserted even when all other rights are licensed freely. Thus, for example, someone who lives in a moral-rights jurisdiction and writes open-source code would still have -- regardless of the terms of the license -- the right to quash particular uses of the software, or the creation of forks. This is why a number of larger open-source-supporting organizations have contributor agreements which include a clause stipulating that contributors will not assert moral rights against the projects to which they contribute. Moral rights also interfere with uses that people in the US can largely take for granted; authors in moral-rights jurisdictions can, for example, quash parodies or satires of their work even if those parodies or satires would otherwise be permitted by the relevant copyright laws.
    - pbhjpbhj 17y ago
      If a coders moral rights are inalienable to the extent that some right can be asserted after he has license away those rights then he cannot create open source software under certain licenses. If he can later demand attribution then he must choose a license that includes teh possibility of attribution - yes I can see this could be a problem. Do you know of any specific jurisdiction in which a creator can't license away the rights needed?

quoderat 17y ago

It's depressing reading this, and realizing how much large corporations have co-opted the entire culture, hurting both individuals and the culture itself. Some of them I don't think are correct, quite, as it's obvious written from a copyright maximalist angle, but I don't have time to quibble with it.

cduan 17y ago

With regard to US copyright law, one important point not mentioned is statutory damages for infringement. Generally, if you are found liable for infringement, you owe "actual damages," that is, the amount of harm you did or profit you gained from the infringement. However, if the copyrighted work was registered, then statutory damages may be available, meaning that you could be liable for up to $200,000, even if you caused no actual damages. My personal opinion is that this leads to a strange imbalance in the copyright law. If an individual makes a creative work (e.g., a blog post) and makes it available for free, the individual is never going to pay the $60 to register the work. So when someone else comes along and rips off the blog post, the individual only wins actual damages, which the other person argues are minimal because the blog post was up for free anyway. But if a big corporation makes a creative work for profit, it expects to make more than $60 off the work, so it registers it. So someone who copies the work is suddenly liable for hundreds or thousands of dollars in statutory damages, regardless of the harm actually done. This seems, to me, to create an unbalanced incentive: works created for profit receive greater protection than works created for free. There are a number of legislative options to fix this, which I will leave to the rest of you to devise.

fatdog789 17y ago
You forget that the corporation usually pays for staffing costs of the workers who created this work, plus overhead, plus promotional expenses, and possibly even entered into contracts on the basis of the work. A corporation spends more money to create a creative work, so its actual damages are significantly more -- why should it be forced to swallow those other costs? (Even staffing costs are damages b/c those costs could have gone into some other endeavor). Furthermore, work created for profit receives greater protection precisely b/c of the money interest involved -- if the work was created for free, the presumption is that the creator didn't carry about money, and so is not harmed much by infringement.
- cduan 17y ago
  You are absolutely right. And when a corporation is damaged in this manner, it has the opportunity to show its actual damages for staffing, promotions, contracts, and everything else. The issue with statutory damages is that they are awarded without regard to actual injury. They act, more or less, as a punishment or deterrent. So even if the corporation truly suffered no damages, it still can receive a few thousand dollars. (Note that taking statutory damages is an option: if your actual damages are higher, you can opt for those instead.) I'm not necessarily saying that statutory damages are a bad thing. The problem I see is the inequality in their distribution: because copyright registration is costly, statutory damages are ultimately only available to the profit-seekers. One possible idea would be to cut out the registration fee, making it easy for everyone to register their works and thereby receive equal protections.

joe_the_user 17y ago

You can pretty reliably predict that any article featuring the terms "myths" is going to be some kind of propaganda... The term is a rhetorical device which assumes that the conceptions you're arguing against are so childish that they don't merit serious discussion. Generally, it is used by some kind of authority trying to re-impose a black-and-white view of things on a complex, shades-of-gray world - "drug myths", etc.