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

[Richard Hartman <hartman(at)onetouch.com>]

> -----Original Message-----
> From: Jeme A Brelin [mailto:jeme@brelin.net]
...
> 
> 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.

Yes, you would, wouldn't you? ;-)

> 
> > 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."


No, not quite.  Yes, 1-9 say "can't touch this" ... but that is
a positive assertion that "this" is a right that can not be touched.
A restriction on what they can legislate is a recognition under
the law of a right.  Note that, since those rights are "unalienable"
and "granted by their creator" there is no need to explicitly enumerate
_any_ of them.  Yet they do.

#10 does not say "anything else you choose not to touch" it says
"anything that you have not been granted power over by this constitution"
-- a much more stringent restriction on their power (and one that has
been largely ignored by Congress, the courts, the states and the 
people...to the detriment of each of us)

> 
> > 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"?

Because we need a positive statment.

> 
> > 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.

To some.

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

Apparently not.  Otherwise we would not be having this conversation
now, would we?  Our fair use rights _are_ being threatened.  We don't
live in your ideal world, we live in this one where politicians will
do whatever they can get away with.  Therefore we need some positive
statements about what is ours.

> 
> 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.

Please elucidate.  I don't see that.

> 
> 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.

Yes, but it allows the publisher to hold the writer hostage
when it comes time for negotiations.  If the first printing
sold well, the author might justifiably wish to have a bigger
percentage of the second printing.  Under your system all
the publisher has to do is say "no" and they get the work
for free a few months later when no new edition is available.

> 
> > 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.

See my previous paragraph.  As long as the hiatus between
printings can be considered "unpublished", the author is
at risk of losing his copyright at the whim of the publisher.
This can not be allowed under any system of copyright worth
the name.

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 If the work goes totally unpublished, why should the public 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

But the question is _why_ is it unpublished?  _Who_ has the
control of that?  As long as the publisher has that control,
then the author should not be penalized for the publisher's
actions (or lack thereof).

> 
> > 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.

You yourself stated in your first msg that movies recover
their costs w/in the first seasion (or not at all) but that
it may take a book much longer.  Is that not justification
(under your own arguments for how to justify a copyright term)
for different terms for the different media?

> 
> > > 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.

Granted.  Nonetheless, if we wish to effect change we must
attempt to do so in a way that has some shred of a chance
of passing.  Afterwards we can refine it further.  It's 
"the camel's nose in the tent" or "boiling a frog one degree
at a time" approach.  Note how well it has worked in the
other direction.  If you try to go for the whole ball of
wax, you'll get more opposition than if you go incrementally.
Tactics.  They're needed in the real world.

> 
> > > > 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.

You would need to expand on this.  The constitution gives congress
the power to regulate copyright.  Which constitutional right are
you invoking that limits this _explicitly_granted_ (hence not
subject to the 10th amendment reserve) power?

> 
> 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.
> 

I never mentioned up licensing, so let's not expand the scope
of this argument further.


-- 
-Richard M. Hartman
hartman@onetouch.com

186,000 mi./sec ... not just a good idea, it's the LAW!