?

Log in

No account? Create an account
Lakeshore
An author of no particular popularity

Jay Lake
Date: 2007-08-03 06:01
Subject: [process] Copyright follies
Security: Public
Tags:process, publishing, writing
We've got a copyright discussion going in comments on this post yesterday.

manmela said (in part):

Don't get me wrong, it still is a clear case of copyright violation and the act is at best morally grey. However, I've had photos of mine taken with out permission and republished, usually with full credits, and you know... more often than not it's been effective marketing.

If they were changing the name of the authors of the SciFiction pieces that would be wrong on every level, if they're just trying to ensure they don't get lost by a scifi.com disk wipe maybe the way to rectify the situation is to find a new location for the archive.

I fully support copyright, and trust me, I KNOW writing is a business (*looks at bank account and sighs*), but I also believe in preservation of the arts.


I replied:

Well, I actually think the intentions are good here as well. But in US copyright, any unlicensed use is an infringement regardless of profitability. There is a fairly broad Fair Use exception, but this quite clearly doesn't fall under that. There are also exceptions for citations within other works (a form of Fair Use, I believe), but they rely on only an insignificant portion of the copyrighted material being reproduced.

(As a sidebar, this is why music sampling has been so troublesome within our copyright regime. Many pop songs have lyrics that run <100 words, or not much more, so pulling a line or two out or even a small, recognizable cluster of notes, has been held by the courts to be a substantial portion of the copyrighted work.)

The damages are statutory, which is to say they apply to the infringement itself, not to the commercial value. That also means that if a court finds [that] infringement exists, the damages are automatically applied. And they are humongous. If commercial value were being derived, there might also be compensatory damages.

Copyrights aren't like trademarks -- there's no use-it-or-lose-it aspect here. Ie, an undefended copyright does not then lapse. At the same time, many if not most writers object to unlicensed use of copyrights because it puts our work out of our control, and deprives us of livelihood through lost income. In simple terms, it's stealing, regardless of the intentions. Now, if the original work had been posted under certain forms of the Creative Commons license (pace Doctorow), then we'd have a different issue. But the SCI FICTION contract didn't offer CC licensing that I recall, and I don't normally elect it for my fiction.

I have all my flickr photos under a very permissive form of the CC license, btw, because I do perceive and understand the value of that sort of openness. I prefer to have more control over my fiction.

If anyone reading this is an attorney, please feel free to correct me or amplify my remarks.
Post A Comment | 14 Comments | | Flag | Link






Patrick Nielsen Hayden
User: pnh
Date: 2007-08-03 13:34 (UTC)
Subject: (no subject)
Your link is broken.
Reply | Thread | Link



Jay Lake
User: jaylake
Date: 2007-08-03 13:54 (UTC)
Subject: (no subject)
Oops. Fixed.
Reply | Parent | Thread | Link



(no subject) - (Anonymous)
houseboatonstyx
User: houseboatonstyx
Date: 2007-08-03 18:24 (UTC)
Subject: (no subject)
Excellent point. But there is a difference between making an unauthorized archive -- and publishing that archive.
Reply | Parent | Thread | Link



(no subject) - (Anonymous)
Jay Lake
User: jaylake
Date: 2007-08-03 20:18 (UTC)
Subject: (no subject)
The answer isn't to break the law, the answer is to change it. A certain Mouse will spend billions to keep that from happening, unfortunately.
Reply | Parent | Thread | Link



(no subject) - (Anonymous)
Jay Lake
User: jaylake
Date: 2007-08-03 20:30 (UTC)
Subject: (no subject)
That's right up there with the Anatole France quote:

La majestueuse égalité des lois interdit aux riches comme aux pauvres de coucher sous les ponts, de mendier dans les rues et voler du pain.

The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.
Reply | Parent | Thread | Link



houseboatonstyx
User: houseboatonstyx
Date: 2007-08-04 02:33 (UTC)
Subject: (no subject)
[[ Are the copyrights to midlist midcentury books, whose authors are dead and whose publishers have basically forgotten they existed, worth anything at all? .... Why shouldn't the small group of people interested obscure works be able to access them without being hamstrung by copyright? ]]

There are 'publisher out of stock' books whose copyrights their authors would like to buy back, so that they can make them available to the fandom that wants them; but the original publisher has long since been gobbled up (or gone into receivership) and the current title holder can't be found or won't respond. Imo a good solution would be a return to 'copyright must be renewed after X years' or it reverts to the author (or if no author or heir can be found, into public domain).

I like the term 'abandonware.' Autos and boats whose last registered owner does not respond are entrusted to someone who will put them back in service (with a period for reclamation); imo the same principle might be applied to works under copyright that are de facto out of print (and whose author does not respond).
Reply | Parent | Thread | Link



S. Boyd Taylor: bow
User: sboydtaylor
Date: 2007-08-03 13:41 (UTC)
Subject: (no subject)
Keyword:bow
So what you're saying is... You don't want my wife to write Mainspring/Boon Dock Saints cross-over slash? ;)
Reply | Thread | Link



(no subject) - (Anonymous)
manmela
User: manmela
Date: 2007-08-03 17:09 (UTC)
Subject: (no subject)
This is how you can use the DMCA to help you. If you can find out who their host is, and their host is a responsible US based hoster, you can issue a takedown notice without any cost

Basically all responsible hosters will have an email address to report copyright violation (usually of the form abuse@whatever.com). If you send them a polite email saying that they have used your work without permission, and it is in violation of your copyright, they will usually give the website 48 hours to remove or, or they'll remove their website. Now if it's a website full of viagra ads, it's unlikely to be a responsible hoster. Also if it's hosted in another country, then those country's copyright rules and takedown processes apply.

I am not a laywer, and even worse, I am a foreigner, but I have used this on a number of occassions with hosters in the US.
Reply | Parent | Thread | Link



Doctor Pipe
User: dr_pipe
Date: 2007-08-03 15:28 (UTC)
Subject: (no subject)
I'm a pretty anti-IP kind of guy... way I see it, the more people who read my stuff, the better, and I'm not at all convinced that that sharing (or stealing, or whatever you want to call it) could ever translate into less money for me. I can only see it translating into more, or the same amount.

Anyway, just wanted to give a link to my very long argument about this from a few years back:

http://dr-pipe.livejournal.com/5557.html
Reply | Thread | Link



Jay Lake
User: jaylake
Date: 2007-08-03 15:31 (UTC)
Subject: (no subject)
And I'm all for sharing. As I mentioned elsewhere, I make my photography available under the most open Creative Commons license. I take a pretty broad view of compensation, as well, especially for independent publishers or unfunded individuals acting as publishers. It's just that I'm very much against sharing without permission.
Reply | Parent | Thread | Link



Doctor Pipe
User: dr_pipe
Date: 2007-08-03 16:01 (UTC)
Subject: (no subject)
Of course! I realize I'm coming into an ongoing discussion with context of its own; I just think my completely different discussion is related and possibly of interest.

I don't mean to suggest that my arguments are against yours, or that they quite fit into to this discussion specifically.
Reply | Parent | Thread | Link



manmela
User: manmela
Date: 2007-08-03 17:41 (UTC)
Subject: (no subject)
Jay made a good point on the other thread: "Those works have value which can be resold to themed print anthologies, for example. Or included in collections. That value can be reduced by the free availability. If I've chosen to provide the free availability, then I've chosen to accept a possible reduction in the value of my copyright. No one else has the right to make that choice on my behalf."

The problem as I see it (and to all intents and purposes here I am playing Devil's advocate here) is that to the general public by posting to a freely accessible website (whether it was SciFi.com , Strange Horizons or anywhere) then they will view that as having already been freely available. Joe Public would say that copying them ordinarily would be wrong, but as the original archive is closing down these are special circumstances.

The big problem is with copyright is that most people agree with the concept and differ on the details and feel copyright law is wrong in some way or other. And because most people think copyright law is wrong, most people (and I hope I'm not over-generalising here) interpret the law with their own opinion. Making copies of CDs for friends is wrong, but a lot of people do it, making mix tapes or CDs for friends is a copyright violation but people still do it, downloading music and movies is wrong but P2P gets ever popular. I'm not sure about the US, but I think in the UK at one time it was technically illegal to video a TV programme, yet I'm guilty of that one.

I'm not trying to excuse what this website did, or say that Jay is wrong to have the views he has. The law is the law, and I completely agree with that. In fact I don't think Jay has made a comment I disagree with.

But I just asked a friend of mine who doesn't read (anything) his moral opinion. I tried to make it as balanced as possible, providing both sides of the argument as neutrally as I could. He said that if the blog in any way is used to make money, even through linking to another commercial site where the bloggers could make money, then he says they would be at fault, and it would be in their view wrong to do so. If however, they are making no money from it, and it's simply to provide a continuity of service then he would view the authors as at fault if they tried to stop it. I'm off to see my family soon and will see what their opinion is.

It would be interesting to get someone like Cory Doctorow or Charles Stross in on this discussion. Both know the oddities of the internet well and could probably give a much more informed viewpoint than I ever could. At the end of the day I'm not trying to defend the viewpoint I'm making... I'm just trying to say it exists.
Reply | Thread | Link



manmela
User: manmela
Date: 2007-08-03 19:10 (UTC)
Subject: (no subject)
As promised I discussed this with my family when I popped round. My parents are of the opinion that it's a copyright violation no ifs and buts. If it results in fiction being unable to be read, well,tough... the law is the law.
Reply | Parent | Thread | Link



(no subject) - (Anonymous)
Jay Lake
User: jaylake
Date: 2007-08-03 20:04 (UTC)
Subject: (no subject)
That value can be reduced by the free availability.

I didn't say it is reduced, I said it can be reduced. I myself believe in making stories widely available. Just not my stories without my permission.
Reply | Parent | Thread | Link



browse
my journal
links
January 2014
2012 appearances