Copyright myths explained

templetons.com

29 pointsbearwithclaws13 comments

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.

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.

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?

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.

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?

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.

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.

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.

I don't see the big deal. First of all, the fee has been reduced to about $35 for online registration. So if copyright infringement is that important to you, then just register your blog posts. The registration requirement is not there to help big corporations but to create proof that you had control of a the thing that is allegedly copyrighted at a certain date.

The US legislature decided that in order to fairly charge statutory damages, it should at least have some evidentiary certainty to when something was copyrighted. So the registration requirement was created to provide some certainty.

The fee seems proportional to the costs of running the whole registration scheme by the library of congress. So it is not there to punish you for being poor.

If you really care about your blogs being registered I can suggest a couple of tricks:

- register a bunch of blog entries together. For example you can register a whole year of blogging as a single work.

- You can not register all your blog posts, but if you see someone stealing something from you, register the thing they stole. They will probably continue the copyright violation after your registration.

(PS while I am a lawyer, none of the above is legal advice and no client attorney relationship is created.)

[IANAL, this isn't legal advice either]

If you register your whole years posts as one work then a large excerpt from one post would probably not be a significant part of that whole work. Copying of an insubstantial part usually rules out the copying as being commercial - this is where lawyers earn their fee, what is an substantial part?

In the worst circumstances I can see such a registration meaning you get no damages at all as it supports the copiers claim that the amount copied is not enough to be commercial damaging.

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.

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.

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.

Reply on news.ycombinator.com