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Comment by rflrob | Hacker News Reader

> And again especially works of nonfiction or scientific papers.

As much as I feel that science---especially publicly funded science (which almost all of it is)---ought to be freely available fairly quickly, I think making a distinction for the purposes of copyright law between fiction and non-fiction is fairly hairy. Clearly "A Streetcar Named Desire" is fiction, but what about memoirs? Poetry? The Onion? Dianetics? The output of human writing spans a continuum of factual-ness, and it's not obvious to me that there's a good way to draw a line.

Even in the hardest of sciences, it's often underappreciated how much interpretation and creative energy goes into a paper.

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The legal system is not applied by computers, but by humans. That's why laws don't have to be written in a way that pre-defines every possible edge case - you can let judges make a common sense judgment call about it later.

For example you could have a rule that anybody who makes a work available "in good faith" in the belief that it is a scientific paper out of copyright is not liable to damages. Then all edge cases would be cleared in the context of take-down requests, which is not very high stakes...

> The legal system is not applied by computers, but by humans. That's why laws don't have to be written in a way that pre-defines every possible edge case - you can let judges make a common sense judgment call about it later.

That's a very US-centric (or to be precise, Anglo-Saxon centric) statement. The vast majority of countries in the world uses a civil-law system instead of common-law system. In civil-law system, codes and statutes are designed and supposed to cover all edge cases and eventualities

I'm a lawyer in a civil-law system and I would not agree with this description. Maybe one can say that in theory civil law systems have more legislation and are less comfortable with "judge made law", leaving the filling of gaps to the legislative powers. But it would be impossible to write laws that cover all cases, therefore every civil law system relies on general principles.

For example, the whole German tort law is basically: "A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person is liable to make compensation to the other party for the damage arising from this."

When is a behavior negligent? What falls under the "another right of another person" (your reputation, your privacy?)? Does the owner of a highway-restaurant get damages if a negligent chemicals transport company does not secure its load properly, leading to dangerous chemicals spilled on the highway, leading to closure of the highway for a week = meaning no customers for a week? [damage to property???] These are all questions that are totally up for a judge to decide.

Classifying if a work is a scientific or a non-scientific publication - or at least if somebody might have classified it as scientific in good faith - is nothing that a civil law jurisdiction can't deal with. Other areas of law have much harder conceptual distinctions. (E.G. Are parent and subsidiary company having an "at arms length" relationship as required in transfer pricing tax law?)

Right, I don't actually disagree with your statement in principle, it was more of a nit-picking kind of thing. Most law system would not be cleanly civil or common law, but a gradient between the two. I guess I was thinking it being more of an issue in country with bad judiciary system.

I wish copyright was more limited with regard to scientific works. But how to define them? In a conservative sense, perhaps works that are

1) a technical or research article

2) produced with public funding

Could receive more limited (shorter-term) copyrights etc.

Fiction and nonfiction seems like a very natural way to categorize works. Is anyone really going to argue that scientific papers are works of fiction? Would any reasonable court hold that up? All laws have to deal with the natural fuzziness of concept space. But if libraries can manage it successfully, surely the copyright office can.

What about allegories and thought experiments?

Two examples on the top of my head:

1. The strange cave of Ali Baba (or how to explain Zero-Knowledge protocols to your children) - Jean-Jacques Quisquater - Advances in Cryptology - 1990.

2. The fable of the Tyrant Dragon - Nick Bostrom - Journal of Medical Ethics, 2005¹. This is a work of fiction designed to make a statement about the stance of society towards fighting aging.

¹ http://pages.cs.wisc.edu/~mkowalcz/628.pdf

² http://www.nickbostrom.com/fable/dragon.html

The categorization could go either way. Leave it up to the copyright office to decide.

However given the context of an allegory in a larger work of nonfiction, or it's publication in a nonfiction scientific journal, I would lean towards saying it should be nonfiction.

They're both non-fiction. Context, not just the title can be used in categorization.

> Fiction and nonfiction seems like a very natural way to categorize works.

But what about

- popular scientific books

- popular scientific books that embed the science into a nice story

- science fiction books

- "hard" science fiction books, which are strongly oriented on physical theories

- a description of a highly experimental physical theory embedded in a nice framework of how alien civilizations might take use of technology that this theory enables

- Books about historical facts

- Novels that are strongly based on historical facts and even interviews with contemporary witnesses, that nevertheless use some little literary license (for example The Gulag Archipelago https://en.wikipedia.org/wiki/The_Gulag_Archipelago).

- Novels that are based on historical facts that nevertheless take some literary license to make the story more exciting

- Fictional story that is occured in some concrete non-fictional historic time

- A scientific description of some ethical thought experiment

- A novel that is based on some ethical thought experiment, where in the story some academic person gives a quite scientifically accurate description of the thought experiment

- A novel that is based on some ethical thought experiment

See my comment above replying to someone else. There might be some fuzziness, but in context it's easy to classify. And for the weird outliers, the copyright office can make the call on how to classify them. Almost all of these seem pretty straightforward to classify. Just ask yourself what category you would find the work in a library?

>popular scientific books

Certainly nonfiction.

>popular scientific books that embed the science into a nice story

Not sure what you mean, but that sounds like fiction even if it has some science in it.

>hard" science fiction books, which are strongly oriented on physical theories

Same thing.

>Novels that are strongly based on historical facts and even interviews with contemporary witnesses, that nevertheless use some little literary license (for example The Gulag Archipelago

Well your own wikipedia link classifies it as fiction at the bottom. In fact all the examples of novels that are loosely based on truth are fiction.

But no one is ever going to claim a scientific paper is a work of fiction, and should be protected for 100+ years.

>A scientific description of some ethical thought experiment

This seems like the only fuzzy example. But such a thought experiment will almost always be in the context of a larger nonfiction work. And it will be published in a place like a scientific journal with other nonfiction, and be placed in the nonfiction section of a library. So that seems like the most practical and natural classification, legally.

The fiction/non distinction is a red herring.

Non-fiction pop sci isn't funded in the same way as scientific research.

Authors are paid to write pop sci, and it's very hard to produce a good book without getting paid an advance which allows a significant amount of full-time research.

If you create a system that can't pay advances, you're limiting pop sci to amateur efforts and short Wikipedia articles.

It's true a lot of pop sci isn't all that great. But the best books are literally life changing, and it's really not the best idea in the world to make it impossible to fund them.

>But no one is ever going to claim a scientific paper is a work of fiction, and should be protected for 100+ years.

There should be no question that scientific papers should be public, because the public has already paid for them.

Private research can be protected by patents, so there's no reason not to share the research with the public as long as commercial implementations are protected.

Hold on, I never said completely abolish copyright for nonfiction. I suggested reducing it to 10 or 15 years. Most pop sci will have no economic value after 10 years, so it shouldn't change anything.

It's utterly ridiculous that an out of print 1950's textbook by a dead author, is still protected by copyright. How is society benefiting from this arrangement at all?

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