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RE: [dvd-discuss] Going on the offense.




On Mon, 10 Sep 2001, Richard Hartman wrote:
> However, it does not hurt to have some rights explicitly spelled out
> in the positive ...

I would argue that it does.

> as long as you have a clause explaining "and anything else not
> proscribed by law is reserved to the people".  Consider the Bill of
> Rights.


Better to amend existing negative regulation to explicitly limit the
regulation and clearly state that all other rights are reserved by the
people.f

> Strictly speaking, all we should need is the 10th, but they wrote the
> first 9 anyway.
[snip]
> But they wrote the first nine anyway, didn't they?

I think you misunderstand the first nine amendments... and possibly the
tenth.

The first nine are there to say "Article I Section 8 says that Congress
can do stuff to those enumerated ends.  That power is not absolute and
Congress cannot touch the following:"  And the tenth says, "Anything that
isn't spelled out for Congress to do in Article I Section 8 is not for
Congress to do, but the various States may go ahead and have their own
goals that are more broad than that of those Federal government.  And
anything that isn't explicitly forbidden is allowed."

So Amendments I-IX say "Don't touch these."  And X says "And anything else
that you choose not to touch is for the people."

> Not if it is written with "including, but not limited to" phrasing.

Why not just amend the negative law to use language like "including and
strictly limited to"?

> Then at least we have a stake in the ground that they can not cross.
> Right now, there is _nothing_ explicitly embodied in the fair use
> concept -- it's all based on precedent, which can be ignored if
> necessary.

The Fair Use doctrine is a logical conclusion of the First Amendment.

The First Amendment is the ONLY positively phrased law we need on the
matter.

As I've said a godbillion times, 'What part of "SHALL MAKE NO LAW" don't
you understand?'

> > > An "Information Preservation" act, legalizing the making of personal
> > > copies of any out-of-print material.
> > Copyright law shouldn't extend to unpublished work or work 
> > not currently
> > published.
> 
> So if I snatch your manuscript and get it published first,
> you're out of luck because I have the copyright?

That's theft of private property, at that point... but I digress...

I think we made a big mistake in joining the Berne Convention and I
believe that mandatory registration of works in order to attain copyright
is vital.  It's the only way to guarantee the work will be available to
the public at the end of the copyright period (which is our whole impetus
for granting copyright in the first place).

Copyright on unpublished work is one of the main reasons we're in this
mess.

As for copyrights registered by false authors, surely there will be
remedies under the law.  Authorship can be challenged and original
authorship must be proven by the defendant.  We have similar case
precendence today.

> What is the status of your book between it's first and second
> printings?  (What is the definition of "currently published"?)

"first and second printings" is just so much publisher jargon.

"Currently published" means that NEW COPIES are made available FOR SALE to
the GENERAL PUBLIC at a FIXED PRICE.

If you want to say "Yeah, I've got a copy right here and it'll cost ya a
billion dollars", fine.  As long as I can go to the LOC, look up the
copyright holder, and you can point me to someone who has a new copy for
sale.

No licensing crap and no non-economic discrimination.  And the resale
market doesn't count.

> That last is the best approach.  A set term, regardless of the actual
> state of published or not (which can be deuced difficult to define).

Actually, I think I defined it quite well.

If the work goes totally unpublished, why should the public protect your
copyright?  What's in it for the people?

> It may also be necessary to create different terms for works based in
> different media (e.g. books vs. movies), but that sort of wrangling
> could become difficult.  What about media as yet uninvented?

I don't see anything "necessary" about that.  No reason for
discrimination.  And, as you say, technology-specific regulation is
obviously wrongheaded.  If you can't generalize, you don't know what
you're talking about.

> > Right now, I'm thinking of 9 years with a 6 year extension for works
> > that have been constantly available for the past 9, but not turned 
> > profit.  And I'd like to give the copyright office authority to deny
> > extension for works with significant public interest.
> 
> You'd probably get too much opposition w/ anything short of a 2-digit
> term.  Wasn't the pre-Bono term 28 years?

Oh, PLEASE.  You're going to get HEAPS of opposition if you try to
decrease it by one day.

Shoot low, compromise to 28 if we MUST.  If we can show that most works
that eventually turn a profit do so within ten years, why set copyright
higher than that?

Do you know WHY copyrights are so long now?  It's not because they hope to
make money on It's a Mad Mad Mad Mad World up until 2050.  It's because
they want to SUPPRESS information so that we have less choice and will be
carefully steered toward the new product.

> > > A bill protecting the public's ability to make an archival of any
> > > "IP" they own or license, including the creation, purchase, and use
> > > of "circumvention devices".
> > This should be covered by fair use.  
> But you deny the requirement to spell out what is covered
> by fair use.  So nothing is really covered ...

I should have phrased that more carefully.

"This IS covered by fair use."  No reason to make a law that can be
repealed or amended that restates a Constitutional Right.

And there is absolutely no case for copyright on work that is only
available on license.  If you can't OWN A COPY, it hasn't been published.

J.
-- 
   -----------------
     Jeme A Brelin
    jeme@brelin.net
   -----------------
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