Why writers drink, Part Whoknows
Tuesday, September 13th, 2011 12:51 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
rolanniAn alert reader sends me this link to an article at Techdirt, in which the author of the article is lambasting The Authors Guild (the mandate of which is to protect the rights of its author-members; a mandate that it tries to fulfill, with mixed results)of being anti-education and anti-learning because it’s Being Mean to some university libraries who “got tired” of waiting for Congress to figure out copyright (yet again) and decided to take matters into their own hands.
These libraries decided that if a work was, in their sole judgement (using what methodology is unclear), “orphaned” then it belonged to no one, was thus free, and the library could therefore scan it and make it available.
Mind you, I’m a fan of libraries. I have some real issues with the rhetoric of certain professors, who, snug in their well-paying day-jobs like to talk about the Evils of Copyright! and Mean Intellectual Property Holders Keeping Information Hostage! and How an Author Never Made Money from Their Copyrights! …and a whole lot of other arrant nonsense that just makes me want to go lie down in a darkened room with a cool towel on my forehead.
There are a couple of issues regarding this article, and the comments to the article.
One: The whole Orphan Works Issue that we all hear so much about and which is the total justification put forth by universities and Google and proselytizing professors? Is a red herring. There are NOT millions or even hundreds of thousands of Brilliant! Works! Still! In! Copyright! just lying around the place whose authors-or-rights-holders have fallen off the face of the earth and cannot be found, that in-force copyright therefore Robbing! The! Ages! of those gems.
One-Ay: If a work appears to be “orphaned,” i.e. the author is dead, the last publisher of record knows nothing about who might be handling the literary estate? Still doesn’t mean there isn’t a rights-holder, somewhere, who is, either willfully or through ignorance, withholding the use of the work, and the universities, and Google and the proselytizing profs are still stealing from those rights-holders by taking matters into their own hands. “We don’t wanna look for them,” and “it’s too hard!” isn’t the same as “can’t be found.”
One-Bee: Just publishing everything you (see universities, Google and PP, above) can get your hands on and saying that, if a right-holder happens to notice that they’re being stolen from, they can file a DMCA notice is…oh, breathtakingly arrogant. For starters.
Two: Big Biz Education, Google, and Proselytizing Profs really need to get out into the real world, and talk to real writers — not! academic writers; real writers, by whom I mean exactly those Evil! Copyright! Holders! who, um, do and are making money, and sometimes their sole living from those copyrights; from the mouths of whom the universities, Google and the well-paid Proselytizing Professors are taking Actual Food.
Edited to add: Link to the Authors Guild side of the story
Edited again: Link to NYTimes story regarding Judge Chin’s rejection of Google’s Grand Plan to Digitize the Known Galaxy.
And!Judge Chin’s breakout quote, which I couldn’t find yesterday: “A copyright owner’s right to exclude others from using his property is fundamental and beyond dispute.” – Judge Chin, 2011
Originally published at Sharon Lee, Writer. You can comment here or there.
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no subject
Date: 2011-09-13 08:37 pm (UTC)Just personally, I don't want to have a "precedent" for stealing my stuff out there, and letting UMich get away with this action, without at least a discussion (a lawsuit of this sort being a discussion) if whether what they've done is perfectly OK or stealing, or Something Else, is only opening the door to let others do the same.
UMich says that it's too hard to find the copyright holders. Do we have a definition for "too hard" that will control a follow-on attempt by an entity, um, less honorable than UMich? Such a definition is needed and can come out of the discussion the AG is forcing.
Is there a uniform methodology for tracking down rights holders? There needs to be, and that can be hammered out in the discussion about to happen, too.
So, let the AG bring suit and UMich defend itself and let's see who is the more persuasive, and what good can be gleaned.
Not that hard!
Date: 2011-09-14 12:16 pm (UTC)That is how hard it should be to find the copyright holder.
Re: Not that hard!
Date: 2011-09-14 12:57 pm (UTC)1. The law. If the copyright is still in force, it doesn't matter if you (general "you") "can't find" the rights holder. The work is still in copyright, and one may not violate that; it's stealing.
2. Common law copyright. When I write a story, I put a copyright notice on it. That means I claim my copyright -- my maker's rights -- for that story. It is copyright and if you (general "you") take it for your own use, it's stealing.
3. Incompleteness of records. The Copyright Office is pretty dern efficient, but...records do sometimes get lost even in the best of filing systems.
4. Duplicity. We had a contract with a publisher that specifically stated that the publisher would file our works with the Copyright Office. They didn't do that. When we discovered this, we did, indeed, make the matter right, but in the meantime, we were protected by Common Law Copyright because each of the novels in question bore a copyright notice.
Just by the way, I deleted your second, almost-identical post downstream, to keep the conversation focused.
And! The next time you post here, please sign your name, or I will delete your post, whether it's substantive or not.
Thank you.
Re: Not that hard!
Date: 2011-09-26 03:48 pm (UTC)Also, it's not just professors talking about orphan works. It was a major argument in Eric Flint's copyright columns some years ago. Of course, Flint wasn't advocating copyright violation as a remedy.
(Also, there's no stealing involved. But that's a different argument altogether.)
Re: Not that hard!
Date: 2011-09-26 07:48 pm (UTC)The fact that you wrote down "Copyright 2011 by YOUR NAME"? Yes, that's right.
Also, there's no such thing as a common law copyright
Actually, there is -- it is the act of writing down "Copyright 2011 by YOUR NAME", which is your (universal "your") intent to copyright, and serves as fair warning that the work so copyrighted is not Free Candy. No, the act of placing a copyright notice on one's work is not Formally Named "common law copyright".
Also, it's not just professors talking about orphan works.
You're right. A fair number of people talking about "orphan works" are people who think I don't have a right to make a living from my work, and who refuse to inform themselves of the facts of the matter before expressing an (usually loud, often overlong, and nearly always condescending) opinion. The foregoing is not aimed at present company, but at the number of Loudmouths who flock to online discussions about Teh Evil Copyright.
It was a major argument in Eric Flint's copyright columns some years ago
I'd be surprised to learn that Eric was claiming that there were Uncounted! Numbers! of "orphaned" works that had to be saved by any means, up to and including theft. Which is what the professors and their hangers-ons offer up as an argument: Their ends justify their means, since their hearts are pure.
Re: Not that hard!
Date: 2011-09-27 04:35 am (UTC)The fact that you wrote down "Copyright 2011 by YOUR NAME"? Yes, that's right.
Wrong. Under US copyright law, and the international Berne convention that almost all countries implement, copyright starts the moment you write the actual story down. The technical term is "fixed in a tangible medium of expression" (as opposed to merely being in your head, not yet written down).
The Copyright line used to have an actual legal effect. The lesser copyright treaty, the Universal Copyright Convention, allows member countries to require the copyright line for copyright protection. The Berne convention, which the US is party to, forbids any such requirement (it also forbids making registration a prerequisite for the basic copyright protections). There may be countries that are not in the Berne convention, but they don't matter much anymore since the USA joined in 1989. (Did you know that the US copyright system used to be much weaker than what the rest of the world had?)
Thus, the Copyright line has no relevance in determining whether copyright exists. It does have an informational use, reminding people of copyright, and providing evidence as to the identity of the copyright holder(s).
Also, there's no such thing as a common law copyright
Actually, there is -- it is the act of writing down "Copyright 2011 by YOUR NAME", which is your (universal "your") intent to copyright, and serves as fair warning that the work so copyrighted is not Free Candy. No, the act of placing a copyright notice on one's work is not Formally Named "common law copyright".
Whether you intend it or not, you have the copyright until you explicitly relinquish it. The fair warning point is, of course, valid.
I am actually amazed that you insist on the magic of the copyright line. As an author, it is in your best interest to make people aware of how copyright actually works (no magic lines required).
In the US legal system, common law refers to judge-made law. Copyright is Congress-made (and before the US independence, Parliament-made).
It was a major argument in Eric Flint's copyright columns some years ago
I'd be surprised to learn that Eric was claiming that there were Uncounted! Numbers! of "orphaned" works that had to be saved by any means, up to and including theft. Which is what the professors and their hangers-ons offer up as an argument: Their ends justify their means, since their hearts are pure.
And I am even more amazed that you deliberately misrepresent my point. The next sentence, which you did not quote, made clear that I did not claim 'Eric was claiming that there were Uncounted! Numbers! of "orphaned" works that had to be saved by any means'.
The Flint columns I referred to have been republished at
http://www.ericflint.net/index.php/2011/09/26/salvos-against-big-brother/ (originally published in Jim Baen's Universe).
At least one part of the argument can be found by searching for the words "Heinlein story".
Re: Not that hard!
Date: 2011-09-27 11:16 am (UTC)I'm getting lost here. Does adding the "magic line" do harm? Does it make my copyright somehow vulnerable? Or is it simply a waste of ink, and reveals me as a country bumpkin because ownership is implicit in the act of creation (a point that I happen to agree with, but with which so very many people do not)?
Now, if you like, you may make a crusade out of telling the Opinionated, Pure, and Correct(tm)that the Very Act of Writing confers ownership, that no further claim needs to be made, and nothing needs to be placed upon the document that says "don't steal this" for it to be wrong (or even illegal) for it to be stolen -- and see how that works out for you. I'll wait here.
In the meantime, there are a whole lot of people out there to whom a copyright registered with the Library of Congress means nothing, if they don't already have the author's contact information in their cellphone (i.e., the author "cannot be found"). If it is, in the sole judgment of the person intending to steal the piece, in danger of being "lost" or "orphaned" their theft is justified by the Logic of the Greater Good.
I resent and oppose this. And in light of such a widespread and willful philosophy of justified theft, I don't think that telling writers to put a "magic line" in their work to make their implicit right explicit is a Bad Thing.
And I am even more amazed that you deliberately misrepresent my point. The next sentence, which you did not quote, made clear that I did not claim 'Eric was claiming that there were Uncounted! Numbers! of "orphaned" works that had to be saved by any means'.
Well, I would be shocked to find that Eric was claiming such a thing, which is what the professors claim, and which is one of a number of things I'm specifically complaining about.
Re: Not that hard!
Date: 2011-09-28 04:25 am (UTC)Maybe I misread you, and if so I apologize, but I thought you were saying that the copyright line is required for copyright to exist. It isn't (except perhaps in a couple of minor countries not party to the Berne convention), and telling people such things hurts you and me, both copyright holders. We don't want people to think that anything that lacks a copyright notice is fair game.
As to stealing, I strongly believe it is an inappropriate characterization of copyright infringement (which is illegal and often criminal, regardless of whether it is called stealing). But as I wrote earlier, that's a whole another debate.