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Source link: http://archive.mises.org/15685/nina-paley-on-this-week-in-law-problems-with-copyright/

Nina Paley on This Week in Law: Problems with Copyright

February 14, 2011 by

I just listened to the most recent episode of Denise Howell’s This Week in Law. It featured anti-copyright activist and artist Nina Paley, and had a really excellent, fascinating and wide ranging extended discussion of artistic creativity, problems with copyright and the Creative Commons license model, and so on (I was a guest on last week’s show). Refreshingly, the two lawyers on the show, Howell and Evan Brown, as well as the other guest, Siva Vaidhyanathan, all seemed receptive to at least part of Paley’s copyright-abolitionism. All of them seem to favor reform. One interesting discussion involved the problem of copyright now being automatic and the default, ever since copyright law was revised in the 1970s. Before then you had to actively register your work and put a copyright notice on it. But the law was changed so that there are no “formalities” needed; copyright is now automatically granted whether you want it or not as soon as you create the work.

The panelists rightly point out that a big improvement in the law would be to make copyright opt-in instead of opt-out. (I proposed such a change in “Reducing the Cost of IP Law.”) As Vaidhyanathan notes, however, there are two main obstacles to this. First, the RIAA and corporate interests would strongly oppose any calls for legislative reform; and the US is now obligated under international treaties to have no formalities for copyright protection to exist (see my post The Mountain of IP Legislation). So the US would arguably violate international law (largely of its own creation) if it were to change copyright to the pre-1976 system or to any kind of opt-in system.

Another problem is that the current system is not only not opt-in, it is not even opt-out. This is because there is no easy way to get rid of copyright; I am even suspicious of the legal validity of creative commons licenses, and none of these would make the work truly public domain; CC0 comes close but its validity and global applicability is much more doubtful (see my post Copyright is very sticky!). So given the difficulties in making copyright opt-in, one big improvement in the law would be to at least permit people to opt out of it (or partially opt out, whatever)–basically, the copyright law could be amended to recognize the ability of a copyright holder to partially or completely give up copyright protection, by means of creative commons licenses or other manifestations of intent. I am not aware that permitting people to voluntarily get rid of automatically generated copyright law would violate any of the copyright treaties.

The video for this episode is below; it’s also on the TWiL page for this episode; you can also subscribe to the audio or video podcast for this show.

{ 15 comments }

Wildberry February 14, 2011 at 3:08 pm

Stephan,

I was unaware this was a problem. Isn’t it true that anyone possessing a copyright can refuse to enforce it, grant an unlimited license, place it in a trust that has no authority to enforce, etc?

Why would one need a formally opt out of the copyright law when they already have the discretion to give away the rights if they choose?

It was my understanding that the Creative Commons license has the effect of requiring attribution. Is that incorrect?

What about the problem that a protected work, if its owner opted out of copyright protection without placing the work forever in the public domain, could then be copyrighted by another, since it is still a protectable work, yet not in the public domain?

Is there no way to place a copyrighted work inthe public domain before expiration?

Stephan Kinsella February 14, 2011 at 3:29 pm

“I was unaware this was a problem.”

I’m not surprised. As I’ve said many times, advocates of IP law don’t often realize what a monstrous thing it is they are adovcating.

” Isn’t it true that anyone possessing a copyright can refuse to enforce it,”

Yes, but the point is for people to feel free to use it they have to believe you can NOT enforce it–that you are bound not to.

” grant an unlimited license,”

To whom? A license is a contract; they usually need identifiable parties *and* consideration to be enforceable. And what does “unlimited” mean? If you mean like public domain–not easy. See my Sticky post. Follow the links to the CC0 stuff–they ADMIT on the CC site that it’s not valid everywhere and its enforceability is in doubt.

” place it in a trust that has no authority to enforce, etc?”

Are you kidding? Who will spend tons of money on lawyers to get RID of copyright on their works? Why shouldn’t there be a simple, free way to get rid of the rights the state puts on us?

“Why would one need a formally opt out of the copyright law when they already have the discretion to give away the rights if they choose?”

Because the law says you have a copyright, even if you don’t want it. You can’t “get rid of” it. You can’t “give it away”. All you can do it (a) negotiate with some person and sign an agreement–this is not a way to make it public domain, and it’s not easy for everyone; or (b) put out a CC or similar notice “promising” not to enforce your rights. BUt suppose you post a blogpost tomorrow, “I promise never to collect social security.” I mean does that prevent you from changing your mind later? CC licenses are very problematic IMO. I suppose a court would be reluctant to let you sue someone IF you put out a CC license earlier, on some kind of estoppel defense perhaps, … IF the defendant can prove you “granted” the license. How can they prove this? There’s no signed or bargained for agreement they can easily trot out for proof.

“It was my understanding that the Creative Commons license has the effect of requiring attribution. Is that incorrect?”

Some do. Some don’t. But that assumes the license is valid.

“What about the problem that a protected work, if its owner opted out of copyright protection without placing the work forever in the public domain, could then be copyrighted by another, since it is still a protectable work, yet not in the public domain?”

Copyright is not a verb. You cannot “copyright” something. You GET a copyright automatically IF you fix in a tangible medium of expression an original work of authorship. If my novel is public domain how do you “get” a copyright on it? I mean think of Plato’s Republic. It’s public domain. Why aren’t people “copyrighting” it? because they didn’t AUTHOR it.

Yes, I can incorpoate public domain work into a new, derivative work, bu then all I have protection on is the new work. People always make this comment and it’s a bit ignorant.

“Is there no way to place a copyrighted work inthe public domain before expiration?”

Not that I know of.

Seattle February 14, 2011 at 4:32 pm

Copyright is not a verb. You cannot “copyright” something. You GET a copyright automatically IF you fix in a tangible medium of expression an original work of authorship. If my novel is public domain how do you “get” a copyright on it? I mean think of Plato’s Republic. It’s public domain. Why aren’t people “copyrighting” it? because they didn’t AUTHOR it.

I was under the impression that, if you release a work without spelling out the copyright terms, then another person can “claim” it and prevent the author from using it how they like.

Stephan Kinsella February 14, 2011 at 5:47 pm

Your impression is wrong.

Wildberry February 14, 2011 at 4:57 pm

Stephan,

As strange as this may sound to you, I think we have found some common ground. I can see no reason why a person should not have a mechanism available to place a protected work they own in the public domain.

What would be the justification? Does it avoid lawsuits between users and someone attempting to reclaim their rights? I can think of no other reason.

Thanks for your response.

Stephan Kinsella February 14, 2011 at 5:47 pm

Not sure the reason, other than the same reason that does not let you opt out of social security etc. Pure statism, just like the rest of the copyright law you unfortunately support. Wake up.

Stranger February 14, 2011 at 6:16 pm

Your defamatory tone against those who reject intellectual communism is a black mark on the Mises Institute. It is utterly false to claim that proponents of intellectual property support the United States IP statutes. (You are employing fallacy 5 with a twist of fallacy 1.) We support them only to the extent that they are preferable to no protection at all for intellectual property.

Similarly, Hans Hermann Hoppe clearly came out in favor of immigration statutes as opposed to open immigration, as this would be a much worse violation of property than the violations created by the immigration statutes (and another imposition of communism on society, it should be noted).

Stephan Kinsella February 14, 2011 at 6:19 pm

Why don’t you just specify what IP rights you do favor, instead of what you do not favor abolishing? We cannot tell exactly what state granted monopoly privileges you favor if you won’t specify.

Stranger February 14, 2011 at 6:29 pm

I favor IP rights created by IP producers. It is not my right to deny them these rights, and it makes no economic sense to.

Peter Surda February 15, 2011 at 12:07 am

Stranger,

you favour a self-contradiction. I have already explained to you several times where the self-contradiction is. I also explained to you, should you be right, how to disprove my argument.

babybell February 15, 2011 at 9:27 am

Immigration is not exactly analogous to copying.

Copying is not theft.
Stealing a thing leaves one less left
Copying it makes one thing more;
that’s what copying’s for

babybell February 15, 2011 at 2:39 am

That Siva guy is nuts.

Google exists solely because of the State. Stanford innovates because of the State.
What’s next? Al Gore invented the internet?

Bah. I’m not listening to this guy ramble on …

Stephan Kinsella February 15, 2011 at 8:50 am

Well, he does have many good comments and even though he is not a pure libertarian, he seems better than most mainstream law prof types. But yes, if I recall, there were several of his comments that I disagreed with. One was his apparent reluctance to condemn copyright per se, instead preferring to “reform” and improve it. Another was his apparent endorsement of antitrust law to keep an eye on companies like Google; sometimes non-libertarians lose site of the big picture: they condemn the crazy laws imposed on us by the state (like copyright) yet at the same time trust that same irresponsible, incompetent state to competently and justly regulate companies and the market for our interest.

And, like you, I bristled a bit at his comments about how we lose site of how Google etc. have “benefitted” from the state (e.g. NSF grants and the Internet itself); such comments are myopic and fail to take into account the lesson of Bastiat that we have to be aware of the unseen costs of a given policy: whatever “benefits” came from state spending (NSF grants, NASA spinoffs, military research, e.g. Tang, etc.), come at the cost of foregone investment or other use of the taxed/stolen funds. Moreover, there is an implicit assumption that without the state’s NSF grants and Darpa research, there would have been no Google search algorithm, no Internet, etc. In truth, the state greatly impoverishes society; absent a massive spending, regulating, taxing, murdering state, overall prosperity and innovation would be orders of magnitude greater.

Still, I found many of his comments enlightening and it was refreshing how respectfully he and the others discoursed with Nina Paley even given her “extreme” copyright abolitionist views.

Sione February 15, 2011 at 12:27 pm

I find it worthy of note that pro-IP advocates continue to admit to problems with IP regulation but fail to carry through to the fundamental. Instead they say they are in favour of “reform” of IP laws (it’s never explained exactly what they’d reform and how it would supposedly “work”).

If you went to a doctor because you had a UTI and rather than eliminating the infection he stated, that while the UTI was uncomfortable for you, he’d rather not treat it. Instead he’d reform it to allow it to work better, well, surely you’d be out of there…

Sione

Matt C February 23, 2011 at 8:51 pm

I generally lean toward copyright abolition, but (like Lincoln?) could be persuaded to get behind a gradual emancipation plan. So for the sake of devil’s advocacy, I’d say these reforms could at least get the world a step closer to sanity.

-No more automatic copyright; require registration.
-Derivative works of all kinds (not just parody but your own film of Deathly Hallows part 2) permitted from day one.
-Repeal of Eldred v Ashcroft. By this I mean that copyright statutes would be open to constitutional challenge on the basis that they did not demonstrably promote science and the useful arts (their constitutional purpose)
-Repeal of the NET Act, the DMCA, and the immediate roundfiling of ACTA

Let me be clear: I’m no IP advocate; I think it’s an invalid concept. But these seem like reasonable steps to me, for a simple reason:

If you question the average nonexpert about copyright, she will probably think this is *already* how copyrights are implemented. i.e. she will think that registration is required, that “criminal infringement” requires that someone be setting up a profitable company around unauthorized copying, and that the technological control measures in the DMCA are stupid as hell.

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