Hacker News Reader

Comment by elsjaako | Hacker News Reader

I'm nog allowed tot print a new copy of The Hobbit, due to copyright.

However, if I buy a legal copy of the Hobbit and edit it using whiteout and pen that would be perfectly legal (as far as I understand). I could even sell my modified copy.

Isn't this basically what an in-browser ad filter does? Or is my understanding wrong here?

View on HN

Somewhat offtopic trivia, but up until 2012 in the US, you were actually allowed to print a new copy of The Hobbit. Many publishers with no relationship to Tolkien or his estate have done this. Due to a quirk in international copyright law, it had entered the public domain in the US.

A court ruling in 2012 restored copyright to the work, which is super weird since there are a lot of unauthorized copies still floating around.

This sounded far too intriguing to not google a bit. I'm guessing you're talking about this?

> J.R.R. Tolkien first tangled with copyright law in the mid-1960s when ACE Books discovered that the copyrights for The Lord of the Rings and The Hobbit had not been properly secured in the United States by his American publisher. ACE Books opportunistically published unauthorized paperback editions of those books in the United States. Until that time Tolkien’s books had only been available in hardback. Tolkien and his publishers reacted quickly by publishing their own authorized paperback editions, but in order to secure copyright in the United States again Tolkien was forced to revise both stories (thus confusing the issue of what is canonical in Middle-earth for his readers).

> There remained a question over the status of the ACE Books edition until several years ago, when a long-running complaint by the Tolkien Estate was finally settled with payment to the author’s heirs. Until that time some people in the entertainment and publishing industry argued that there was still a copyright “hole” pertaining to Tolkien’s works in the United States.

Source: https://middle-earth.xenite.org/why-are-some-people-sued-ove...

They're referring to Golan v Holder, which affirmed that the US could retroactively restore copyright to works that had fallen into the public domain in the US under the US's old copyright laws, but which remained protected by foreign copyright laws which the US had adjusted to be in compliance with. So basically The Hobbit, like many other works, was copyright protected in other countries, but had fallen into the public domain in the US; when the US agreed to honor the foreign copyrights, it became copyrighted in the US as well.

https://en.wikipedia.org/wiki/Golan_v._Holder

Seems like they are related, from reading https://law.marquette.edu/facultyblog/2011/10/one-public-dom...

Please correct me if I'm wrong, but it sounds to me like in the US The Hobbit never formally was under copyright due to not fulfilling the requirements when published. It remained that way until 1996 when URAA made the UK copyright valid in the US. Golan v Holder then affirmed that public domain works could be copyrighted under those special circumstances.

Turns out I'm wrong, at least in Germany and France.

Authors have "moral rights of integrity" over their work, which means you can't modify a work without permission of the author, even if you own it.

https://meta.wikimedia.org/wiki/Wikilegal/Moral_right_of_int...

I'm mildly skeptical that a court would accept this reasoning in cases of works with many copies and someone making a change to one such personal copy.

Well that's a bloody stupid idea.

Is it? Is it that simple?

I write a book about the suffering of a particular minority. The book sells internationally and earns awards. My name becomes recognised globally.

Someone buys many copies of the book, modifies them to say the opposite of my intended point, making me look like, say, a racist, and distributes it.

Now is it stupid?

My point is your name being attached to a particular piece of work means you're name is directly associated with that work and what it represents. Any changes to the work could alter the perception that others have of you, towards the negative, and you've done nothing wrong.

We've recently seen what happens in a post-truth society when someone says something (usually online) that's not true about another person and the negativity generated towards that person happens before the truth is revealed (and promptly ignored anyway.)

Do we really need more of that?

I don’t think we need a concept of intellectual property at all to talk about why fraudulent behavior is wrong/harmful.

You forgot the important, the moral part is only enforced if: “the modification in question does not have to be detrimental to the author's honor or reputation in order to qualify as a violation of the right of integrity.”

If you made software that took a legally obtained copy of "The Hobbit", modified it locally according to a scripted patch, then displayed that to the user, then that would be similar. Adblocking happens locally. This is similar to game mods.

This example actually popped up in my Patent class. This is what I remembered.

You are allowed to create a copy (and thus also in printed form) of copyrighted material, _only_ for private and personal use. i.e you _must_ recreate it yourself.

As for selling a modified version, if it isn't modified enough than you still infringe copyright of the original author. With "enough" being something that needs to be defended in court if challenged.

> As for selling a modified version, if it isn't modified enough than you still infringe copyright of the original author. With "enough" being something that needs to be defended in court if challenged.

Hang on. Does "modified version" mean the same physical copy I bought and then modified, or a copy I made myself and then modified?

The way you worded that sounds like you're talking about both, but the former makes no sense. Why would it be a copyright violation to buy a book, white-out one sentence, and resell it? And elsjaako was definitely talking about the former.

Exactly, I meant modifying a physical copy (like a physical book from a shelf in a store), never actually copying anything in there.

I would be very interested to learn I was wrong about that.

You must be wrong, or literally every used textbook with notes in the margins is infringing on copyright. Although you could be correct, it’s just literally unenforceable.

> Why would it be a copyright violation to buy a book, white-out one sentence, and resell it? //

Because of exhaustion of rights working on first sale of right to _make_ derivative copyright works not being exhausted on sale.

In USA under Fair Use you have pretty liberal rights compared to most other copyright regimes AFAICT. In the UK we don't have rights, not even under Fair Dealing, to modify works, never mind sell modified works (without permission of the copyright holder); they made an exception to allow caching to make web browsing lawful!

I can't buy your book, edit out part I don't like and resell it as your book, and I can't sell it as my book without your permission. Not even one copy. That's reasonable to me (unless there was a [implied] license for modifications to be made, say). I should of course be allowed to modify the physical copy I purchased as that's ordinary use and copyright shouldn't interfere with that.

What about if I bought a book from a bookstore then I wrote in the margins or highlighted some text and then sold it to used bookstore?

In my personal opinion the modification is insubstantial so for copyright purposes you haven't created a derivative work. There are probably ways you could make it substantial but how would the rights holders ever know. It might technically be a tort but there's no damage; what would a rights holder win?

> It might technically be a tort but there's no damage; what would a rights holder win?

Statutory damages.

Which highlights the essential flaw in allowing statutory damages.

Can you have your kid or personal assistant do that for you?

Over-the-trope example: A wealthy old English aristocrat's head butler brings in his master's evening paper at the kitchen door. Then snips out any stories "which might disagree with master's digestion", before presenting the paper to the old blue blood.

That reminds me of the PureFlix case years ago. Their shtick was editing movies to be more "Christian-friendly". So what they did was heavily edit a movie and burn it to a disk and ship it to you. What they did was they also bought a legit copy of the movie on disk and damaged the disk to unusuable. They shipped you both, so you had a working edited disk and a broken original.

IIRC, they lost the case but I do see the merits in their arguments.

Metaphors don't work here. Real browser pages have code which could conceivably have EULAs, plus you may be in a EULA for a paid service, you have cookie agreements involved (and a similar question could be raised, is your browser obligated to return cookies once given?), the page may also already be interactive (if modifying a page is stipulated to be wrong, what about browser automation driving something "intended" to be manual process? There are contracts the page provider has with their advertisers. Things other than the end-user or page provider may already have had their fingers in the pie (ISPs blocking specific pages, even replacing ads with their own in the network). There's a lot of parties involved in a modern page with all sorts of relationships to each other. There's also a scale here; it's one thing to modify your own copy of a book but if you provide a service that modifies other people's copies (computer style, with virtually no effort in a fraction of a second), how is that different from publishing a modified copy? What impact do those differences have on the question?

All of these things are important and none translate into the book, or any other simple physical metaphor.

My summary answer would be that the status of ad blocking legally is deeply unclear if you really start analyzing it, in all sorts of ways, in ways that different legal jurisdictions will almost certainly rule differently on for all the different individual questions, and almost certainly with no coherence between the individual rulings.

This is only about copyright and copyright only applies to distribution of materials. You are free to modify any copyrighted work for your own purposes as long as you don't distribute your modifications. Distribution is the key.

Then, while I'm not convinced it is anywhere near as separable as you believe, at the very least the book metaphor completely fails to capture the ability to distribute modifications as a first-class entity existing on its own, in this case, block lists and other HTML modification instructions, that can result in millions of people getting the "same" modification in their hands.

I called this the "patch hole" in the law over 20 years ago, in analogy to the Unix patch tool, and I still don't think I've seen a legal system cleanly grapple with what it means to be able to distribute modifications on their own. It is a qualitatively different process and result than having to distribute modified versions directly. It rather directly faces a deontology vs. consequentialism question... if two different processes (distributing changed contents directly vs. distributing patches to an end user and providing combination software) produce the exact same end results, on what basis will the law decide that one is OK and the other is not, since allowing people to distribute change lists provides an effective 100% workaround to the existing illegality of distributing changed works?

I'm not trying to offer an answer here, I'm merely trying to establish that talking about "books" isn't going to give a good grasp on this situation. The metaphor simply doesn't work. It's far too simple to capture too many relevant issues.

The difference is that a "patch" implies that it is added to exterior content which means that the question of copyright infringement passes to how that exterior content was obtained.

Patching pirated work is still piracy, but patching work you have purchased legitimately (or were given by the copyright holder, such as a web page) is not piracy.

Has your argument been tested anywhere? I'm quite sure that for example in my country it would utterly fail -- the origin of the work is irrelevant in our copyright act.

A patch applied to a singular work for the purposes of modifying it, I think the law could easily decide that the patch itself is a derivative work of the original. A derivative work does not have to contain anything of the original -- it just has to be made from it in some way.

However, something that it's own generic work or not copyrightable (like a block list) would then not be considered a derivative work.

> It rather directly faces a deontology vs. consequentialism question... if two different processes (distributing changed contents directly vs. distributing patches to an end user and providing combination software) produce the exact same end results, on what basis will the law decide that one is OK and the other is not, since allowing people to distribute change lists provides an effective 100% workaround to the existing illegality of distributing changed works?

You're going about the question backwards.

If we were basing things on reasonable consequentialism, then downloading a modified version of something you already legally possess would not be a copyright violation.

> I'm merely trying to establish that talking about "books" isn't going to give a good grasp on this situation.

That's a fair point but copyright law was designed with "books" in mind so everything is ultimately related to that. Computers have really put a wrench in what was otherwise a pretty simple system.

How about I distribute a set of pictures with instructions on where to paste them in The Hobbit? That's like a patch or an ad-blocker. Seems fine to me.

This isn't quite right. The law doesn't stop you from selling a book where you have written in the margins, you just can't make and distrubute additional copies of the the new combined work. Though perhaps you could buy books to annotate in bulk and then distribute those legitimat but annotated copies. Actually, that is a decent metaphor for what an ad blocker is doing.

Or, you can buy a ClearPlay DVD player (and, I guess they make Bluray players now too). RCA had a similar device as well, but I think it vanished from the market.

It's a DVD player with a service that downloads timecodes to skip all the naughty bits in movies that you play on it.

> I could even sell my modified copy.

Could you? I don’t find that at all obvious.

Why not? You've never sold one of your used books?

Not one that I had edited to create a meaningfully different work from the original.

You can sell your copy, no matter what you have done to it, at least by the First Sale Doctrine in the US, and similar elsewhere.

What you can't do is sell the rights to the modified work, since they're in addition to the original work. When/if the copyright in the original expires, then you can (and you will have your own copyright in the modifications if they're substantial enough).

Crucially, you also can't make any copies of the modified work and sell or distribute them, so your derivative will be a legally-enforced one-off.

It doesn't mean that you can't profit from your modification of another's work (maybe someone will pay for your marginalia), but it does mean that you can't profit from the unauthorized duplication of another's work while their copyright subsists.

> You can sell your copy, no matter what you have done to it, at least by the First Sale Doctrine in the US, and similar elsewhere.

If you have a personal created copy of a copyrighted product which you do not have the rights to, you don't have a right to sell this copy right? (Specifically talking about the copy and not the modification)

In the example you don't make a copy.

You buy a physical book (also called "a copy of the book"). You don't make the copy, you buy it from a legitimate seller.

Then you can modify that physical book, and sell it again.

If you want to sell a second one of the work you made, you need to buy another physical book (another "copy of the Hobbit"), modify that physical object in the same way, and sell it again.

You would own the copyright to your changes, so no one else could modify "the Hobbit" the same way, and no one else could publish instructions on how to do the modifications yourself.

The first-sale doctrine says you can sell your copy of a copyrighted work. But a copy that you've edited is no longer a copy of that copyrighted work; it's a new derived work.

Reading the law, it's still not obvious to me that that would be legal to sell, and I kind of doubt there is any case law on this point.

It's both: a copy of the original (but, critically, a copy made by someone with authorisation to make copies) and a copy of your work, which you executed yourself.

You have the right to sell both, one as owner and one as owner and creator. But you only have the right to make reproductions of your own work, which means if you want to make more copies of the complete derivative, you have to buy new authorised copies of the original. You don't have the rights to make your own copies of the original to modify and sell.

> and a copy of your work, which you executed yourself.

But the copyright on derivative works is held jointly by both authors.

Do you have any citations of case law backing up your interpretation? I'd be really curious to see if a court has actually ruled on this.

The copyright on the whole derivative is joint, but the the copyright on your contribution only is yours[1, p26]. If your creative input relies on the original (e.g. you interliniated a Harry Potter fanfic into a book), you won't be able to sell only your contribution, because the original copyright includes the characters and so on and extends to your work. However, if you draw decorative borders around each page (that are not based on the original: no Ravenclaw logos!) you could photocopy the pages, isolate the borders and sell them separately, but you could not make copies that included copies of (or copies of derivations of) the original text.

As for the sale of the physical modified-but-uncopied original itself:

In the EU, this is permitted under the equivalent to the first sale doctrine[2, p880][3, footnote 7], which covers all IP, including trademarks and patents. There's now some weirdness around Brexit which is what document [3] is all about.

The case law actually goes both ways in the US because the concept of derivative work is not conclusively defined in statute:

* It's OK: Lee v. Deck the Walls, Inc. [4] aka Lee v. A.R.T. Co.

* It's not OK: Greenwich Workshop, Inc. v. Timber Creations, Inc. [5], and also Mirage Editions, Inc. v. Albuquerque A.R.T. Company

These cases are almost identical and one on each side even involves the same defendant, but have opposite conclusions. So as usual, the US gets weird and jurisdictional with it. So, indeed, my original comment is actually wrong in that US First Sale Doctrine isn't guaranteed to apply and mostly seems to depend on the circuit you get sued in. TIL.

There are additional rules if the original is limited edition or certain types of art (usually "visual" and "limited"):

* In the US, VARA means certain creators can, in some cases, sue for damages if you destroy or modify their work, even if you own it

* In the EU there's the Resale Rights Directive (which codifies what is often called droit de suite) which gives royalties of each sale to the artist (but this right cannot be transferred or inherited)

[1]: https://www.wipo.int/export/sites/www/sme/en/documents/pdf/i...

[2]: https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1...

[3]: https://ec.europa.eu/info/sites/default/files/brexit_files/i...

[4]: https://law.justia.com/cases/federal/district-courts/FSupp/9...

[5]: https://casetext.com/case/greenwich-workshop-inc-v-timber-cr...

I am nog allowed tot say

Reply on news.ycombinator.com