Suing individual file traders. Right, wrong, or both?

Discussion in 'Archive: The Senate Floor' started by KnightWriter, Jul 3, 2002.

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  1. Darth_SnowDog Jedi Master

    Member Since:
    Sep 10, 2001
    star 4
    While this is mostly true for programming, it can become a problem for music or writing as well. For example, I could write songs while working as a singer for an organization. Under some conditions, that organization could then claim the songs I have writtne as their own. Same thing with writings. In fact, many standard employment contracts reinforce that fact by claiming everything you write, including personal letters to grandma.

    No, this is specifically not true. On October 12, 2000, the Senate passed H.R. 5107, amending the statutory definition of works made for hire as made by the Intellectual Property and Communications Omnibus Reform Act of 1999 (IPCORA). IPCORA had inserted the words "as a sound recording" into the second paragraph of the definition of "work made for hire" in Section 101 of Title 17.

    For a year, the statutory definition of "work made for hire" included sound recordings... but that change was quickly repealed. The repeal sought to preserve termination rights of recording artists. By restoring the definition to it's original status, the Copyright Act's present form preserves an author's right to terminate a grant of right after 35 years.

    Granted, you're absolutely correct about the interpretation of Chapter 1, Section 201... I stand corrected on it with regard to full-time employees, such as yourself, and do not have any immediate answer without further consideration as to how I think this definition ought to be amended. Should it be? Most certainly I think there needs to be better clarification.

    However, recording artists are not employees of record companies, and as such, the section of Title 17's definition of "work for hire" which applies to your line of work does not apply to recording artists. What does apply in their case is the contractual basis of "work for hire"... wherein the particulars of what is considered "for hire" must be outlined in the recording contract.
  2. Kimball_Kinnison Chosen One

    Member Since:
    Oct 28, 2001
    star 6
    However, recording artists are not employees of record companies, and as such, the section of Title 17's definition of "work for hire" which applies to your line of work does not apply to recording artists.

    Like I said before, my proposal is to reform copyright law in general and hopefully correct many of the abuses in various fields (recording and software industries included). To that end, market forces are a valuable tool, but they cannot prevail until some significant legislative actions occur as well. It is something that must be attacked on many fronts.

    Kimball Kinnison
  3. Darth_SnowDog Jedi Master

    Member Since:
    Sep 10, 2001
    star 4
    I do agree... however, I believe in all cases that the lawyers and legislators do go where the money goes. In the entertainment industry, if the money leaves record companies, the problem is solved.

    Hence, the idea is to let record companies in particular become obsolete. Anyone who doesn't have the money to buy a home recording setup nowadays, much less a musical instrument, isn't likely gaining enough attention of record labels in the first place to even be confronted with the option to sign a record deal anyway. The reason I say this is because you have to already have the money to be recording, touring and doing other activities independently to even get their attention and interest... much less a contract thrown down in front of you. So, for those who have the option, I say don't sign.

    For those who don't... tell me who they are, I'll try to help them by sharing my resources in return for credit on their album.
  4. Kimball_Kinnison Chosen One

    Member Since:
    Oct 28, 2001
    star 6
    Since we agree (I know, it's a miracle, but it had to happen sooner or later), my original question still stands: What are your opinions of the reform that I propose? I ask this because I am trying to build a proposal to send to my Representative, Senators and a few others (including Rep. Boucher who is from my state, but not my district).

    Rep. Boucher especially has talked of copyright reform in the past, but has failed to articulate a clear vision of how it should be reformed. I'd like to help him in his efforts. In order to do that, I'd appreciate any input you would care to give on how my proposal could be improved. Again, in short, I am proposing:

  5. Reduce copyright terms to 20 years, renewable once for an additional 20 years (As opposed to life of the author plus 70 years or a total of 95 years from date of publishing, whichever is longer).

  6. Make copyrights non-transferable, except to the legal heirs of the copyright holder.

  7. Eliminate the principle of "work for hire". In its place I would place a mandatory offer of exclusive licensing to the person who commissions a work. This mandatory license would be limited to the first copyright term. The author/creator would be under no obligation to license the work after that (although they are not prohibited from doing so). The terms of such a license must be worked out in advance (i.e., if you hire an employee, you sign an agreement at that time for exclusive licensing of their code for the first copyright term).

  8. Copyright renewal would not be automatic. If you are dependent on the royalties from the copyright, it is your responsibility to renew it. Common law (non-registered) copyrights would be limited to the initial copyright term, since if you don't register the work, there is no way to renew it. You would be notified by the copyright office in advance to renew, but it is your responsibility to keep contact information current with them.

  9. Finally, once something has entered the Public Domain, its copyright cannot be renewed. To this end, all DRM technologies must be able to be removed at the end of the copyright period, allowing the public access to the work without restriction.


  10. I would also add that music, software, writings or any other copyrightable work would fall under the same rules, regardless of medium. Source code should be protected the same way if it is compiled into a binary (executable), included in a book or made into a song (this has been done before). Music should be protected whether it is the written notes or a recording, or a digital reproduction of a recording. The same rules for everyone.

    I'd really be interested in ways to improve this proposal. I think that it would help curb many of the current abuses and return copyright law to that which was intended by the Constitution. What do you think?

    Kimball Kinnison
  11. tenorjedi Jedi Grand Master

    Member Since:
    Aug 17, 2000
    star 5
    I disagree that the same rules should apply to everyone. It is all based on lifespan. Written work has a longer life span than a performance of the work. A performance has a longer life span than source code or a game. The laws need to reflect this or else you'll end up with the abuses we have with ROMs, and P2P software/music swapping.

    I agree that the renewal shouldn't be automatic, and that if it is a source of revenue for them, that they have to make an effort, otherwise, what's the point of having something copywrited that has no concievable chance of profit? Pong and tetris are good games, but who's going to pay enough money to make it worthwhile to worry about? Meanwhile the person/company can still retain the rights to the franchise for whatever reason (the re-re-re-release of ET Special special edition, or ET2:20 years later Mom kicks ET out of the basement).
  12. Kimball_Kinnison Chosen One

    Member Since:
    Oct 28, 2001
    star 6
    I disagree that the same rules should apply to everyone.

    The problem with that is that you can then create different sets of rules for the same work, depending on its medium. For example, I could write a book. Its copyright would follow the book rules. Then, the book-on-tape would have to follow the sound recording rules while the E-book would follow the software rules. If each one has a different term, when would my work enter the public domain? How would you do it?

    Kimball Kinnison
  13. tenorjedi Jedi Grand Master

    Member Since:
    Aug 17, 2000
    star 5
    On tape would be a performance. It's just one persons audio interpretation of the work. E-books would still be the same as traditional written books. Just because they're on a computer screen doesn't really change what it is. It's not that difficult, and if you make it all the same you void the reason for adjusting the copywrite laws in the first place. You must make them different because there's a huge difference between a computer game and a book.

    10 years is acutally plenty of time for software.

    20 years is acceptable for performance

    Written work is more along the lines of 50 years or for the life of the author, because they live off of their royalties. Plus people still buy copies of Steven King's "It" but who buys copies of the made for TV movie?
  14. Kimball_Kinnison Chosen One

    Member Since:
    Oct 28, 2001
    star 6
    10 years is acutally plenty of time for software.

    20 years is acceptable for performance

    Written work is more along the lines of 50 years or for the life of the author, because they live off of their royalties. Plus people still buy copies of Steven King's "It" but who buys copies of the made for TV movie?


    Copyright wasn't developed to turn something over to the public after it was no longer profitable. It was developed to allow the creator of a work to profit from that work for a limited time in exchange for enriching the public domain. In that light, I would feel that 50 years would be a little excessive.

    How about a compromise, though. Let's make the copyright period 10 years, as well as each renewal period. Then, for each medium, allow a different number of renewals. Using your time periods, no renewal for software, one renewal for performances and (say) 3 renewals for written works (keeping with the 40 years total that I proposed). Then, if an author is still reliant on the royalties from a work, they can renew it for up to 40 years. Otherwise, it would fall to the public domain.

    Kimball Kinnison
  15. Darth_SnowDog Jedi Master

    Member Since:
    Sep 10, 2001
    star 4
    As this issue is very important to me, and to the creative public at large, and I would like to write my Senators and Representatives about it... give me a little bit of time to review these particulars before I respond.

    When I get home I'll have more time to offer my thoughts on this matter.
  16. tenorjedi Jedi Grand Master

    Member Since:
    Aug 17, 2000
    star 5
    Even past 50 years a profit can be made, but the very crux of the issue is to give the person reasonable time to turn a profit on the medium, without being excessive. Books have longer stay than music or software, but it also takes longer to get out to the public, because of how it's distributed. Word of mouth is it's best promotion. No one looks at a page of a book and says "Wow those words there look awsome!" or "wow that sentence moved me to run down to the store!"

    There are vast differences between mediums and the law should accomodate that. Not to mention that copywrite infringement is not very rampant since we have libraries, so there would be little point to it, besides the fact that it would take great effort to put books on word, acrobat etc format. Obviously current book copywrite laws are suitable and do not require change if there was some massive ring of book exchanges going on I'd be more open to consider change, but this is one situation where, it's not broke, so don't "fix it".

    Do you feel 10 years is too much or too little for software? If it's too little tell me of a software that is 10 years old that isn't outdated. If too much consider that if you make it too soon it would infringe on those that might buy it but decide to wait so they can get it free in a few years.

    What is your feeling on 20 years on the music industry for performances? I used 20 as it seemed fair all around, but what arguments can you give that to change that amount of time?
  17. Darth_SnowDog Jedi Master

    Member Since:
    Sep 10, 2001
    star 4
    Ok, I'll post more later but for the moment I think that, with regard to sound recordings, I think that there should exist at least the following provisions:

    1. The scope of "works for hire" continue to be dependent on the definitions set forth in the artist's contract, namely: The rights granted, by the artist to the record company, to specified master recordings in exchange for which monetary consideration is paid in advance. The assignable categories will be defined expressly in contract terms... not statutorily.

    2. The statutory duration of copyright granted should remain limited to 35 years, unless the record company and artist mutually agree on a different term. In other words, the limit of a grant is defaulted to 35 years if there are no specific contractual provisions defininbg the term.

    3. The duration of copyright granted will be terminated automatically five years from the time a sound recording goes "out of print", i.e. the last date of manufacture, regardless of other statutory limitations or exclusions... unless renewed by permission from the artist either in an addendum or pre-emptively by the original contract. So, if Company XYZ stops releasing my album in 2002, their grant will terminate in 2007 unless the artist gives, or has given them in advance, permission to retain rights.

    However, such a provision shouldn't be construed to deny the granted record label the right to continue to profit from albums whose date of pressing/manufacture precedes such an expiration of assignment. So, if there are 1000 copies remaining of a CD pressed in 2002 by 2008, the record label could still ship them in 2008, but the artist would also, by contractual provisions, be entitled to their share of the royalties calculated at the original percentage to which they were contractually entitled at the time of first manufacture of that release. Simultaneously, this provision would not allow the record company to extend their grant on the basis of the last release because it is dependent on the date of last manufacture.

    This provision would feed several purposes.

    a) It would prevent squatting on assigned rights.

    b) It would in itself discourage companies from shoring up large overstocks of manufactured product ahead of time as a loophole because to do so is extremely cost-prohibitive. (i.e. It does not look good on a balance sheet or income statement to have overmanufactured thousands of copies and let them sit in a distribution warehouse for more than five years.)

    c) It protects the artist's right to continue to profit from their work, whether that be fixed in a sound recording or another format. The limitation would allow the artist to profit from the work they originally created when the record company has given up their commitment to marketing it.

    I'll try to think of some more revisions later when I have more time.
  18. Kimball_Kinnison Chosen One

    Member Since:
    Oct 28, 2001
    star 6
    Even past 50 years a profit can be made, but the very crux of the issue is to give the person reasonable time to turn a profit on the medium, without being excessive. Books have longer stay than music or software, but it also takes longer to get out to the public, because of how it's distributed. Word of mouth is it's best promotion. No one looks at a page of a book and says "Wow those words there look awsome!" or "wow that sentence moved me to run down to the store!"

    Let's take a look as some books from just 20 years ago. How many could you name off the top of your head that are still big sellers? Most of them come from authors who have continued to publish books afterward or have already made enough money to support themselves. By 20 years they have already made quite a bit of money (if the book was successful) or they are not likely to make a lot more money (if it wasn't originally successful). Books do have a longer stay, but except for a few, rare cases (like Lord of the Rings), beyond one or two decades, they are not as profitable for the authors. Copyright should be an incentive for authors to keep creating, not milk their previous works dry.

    Do you feel 10 years is too much or too little for software? If it's too little tell me of a software that is 10 years old that isn't outdated. If too much consider that if you make it too soon it would infringe on those that might buy it but decide to wait so they can get it free in a few years.

    What is your feeling on 20 years on the music industry for performances? I used 20 as it seemed fair all around, but what arguments can you give that to change that amount of time?


    First of all, I do actually plan to write this up for my Congressman and Senators (I'll share it here first in its final form). I recognize that, if this ever were to come before Congress, the exact time frames will be negotiated upwards from wherever I suggest. With that in mind, I prefer to err on the lower side. I, too, suggested 20 year because it was a nice, round number (also for the renewal).

    I'd agree that 10 years makes sense for software. That would begin putting programs like MS-DOS 6.22, Windows 3.1, WordPerfect 5.1 and Linux (the earliest releases) into the public domain. There are very few programs that are still sold today that are that old. Mostly the copyright owners hold onto them to prevent competitors from building more compatible products. Sorter terms would also encourage software manufacturers to build better software and constantly improve it.

    Recordings should be longer than 10 years (after all, people still buy music from the early 90s), but not too much longer either. Again, I'd care to err on the lower side. Remember that the purpose is "[t]o promote the progress of science and useful arts", not "to promote long-lasting profits".

    Kimball Kinnison
  19. Kimball_Kinnison Chosen One

    Member Since:
    Oct 28, 2001
    star 6
    SnowDog,

    The scope of "works for hire" continue to be dependent on the definitions set forth in the artist's contract, namely: The rights granted, by the artist to the record company, to specified master recordings in exchange for which monetary consideration is paid in advance. The assignable categories will be defined expressly in contract terms... not statutorily.

    First, is sounds like you support the concept of "work for hire". I agree that the specific transfer of rights should be included in the artist/author/programmer's contract. However, I am a little unclear on your position with respect to my proposal to eliminate "work for hire" and replace it with a mandatory offer of exclusive licensing. It sounds like both our proposals in that area would cover the needs, with one keeping ownership of the work in the hands of its creator and the other placing ownership with the financer. Could you clarify that a little for me? Do you support "work for hire" or would you prefer a replacement for it? If you prefer a replacement, would mine be acceptable or would you propose a different method?

    The statutory duration of copyright granted should remain limited to 35 years, unless the record company and artist mutually agree on a different term. In other words, the limit of a grant is defaulted to 35 years if there are no specific contractual provisions defininbg the term.

    Here you seem to be a little unclear on copyright law. the term of a copyright is defined by law (currently set at life of the author plus 70 years or a total of 95 years from date of publishing, whichever is longer). Currently, if copyright is transfered, it cannot be "defaulted" back to its original owner. However, you can license it to another person/entity and set a license term through contracts. A license can be revoked, but once the creator grants their copyright to another person, they lose all rights to it.

    The duration of copyright granted will be terminated automatically five years from the time a sound recording goes "out of print", i.e. the last date of manufacture, regardless of other statutory limitations or exclusions... unless renewed by permission from the artist either in an addendum or pre-emptively by the original contract. So, if Company XYZ stops releasing my album in 2002, their grant will terminate in 2007 unless the artist gives, or has given them in advance, permission to retain rights.

    I'd say that this is something that should be left up to the individual contracts. There is no need for government regulation in this instance. Under my plan, with non-transferable copyrights, the author/artist would have power to negotiate their own license and (after the initial exclusive work-for-hire license period is ended) could set whatever restrictions they want on it.

    You do bring out some good points, though. I'm interested in hearing more. I look forward to your later posts.

    Kimball Kinnison
  20. Darth_SnowDog Jedi Master

    Member Since:
    Sep 10, 2001
    star 4
    Correction... where I said "statutory duration of copyright granted" I should have said "the statutory limit on non-revocability of such grant of copyright"... In other words... the Copyright Act allows authors to terminate a grant of copyright after 35 years. The termination right does not apply to works made for hire, but then because of H.R. 5107, sound recordings are not categorized as works made for hire... the rights to those master recordings are granted by the contractual provisions between artist and record label.

    Secondly, I support works for hire provided they are defined in certain terms by expressly declared definitions set forth in contract terms. The provision of "works for hire" that concerns your line of work, as an example, should not be assumed in copyright law... I feel it should be required to be specified in a release form signed at the time of employment, in the absence of an employment contract.

    EDIT: I just thought of something. How about keeping the 95-year statutory limit on copyrights held by the original author, i.e. you as a programmer or me as a recording artist, but reducing the statutory limit on grants of copyright to 35 years without automatic renewal? Coupled with the elimination of the first statutory definition of works for hire, and the adaptation of the second definition to require "works for hire" to be categorically or individually identified by employers for salaried/full-time employees in a release form, in addition to the employment contracts already covered by the 2nd paragraph of Section 101's definition of "works for hire," I think this would be an excellent way to protect the rights of creators of works while at the same time maintaining the simplicity of taxation issues relating to the distribution of intellectual property which the current definition of "works for hire" was formulated, in part, to resolve.

    I agree with your point in the third paragraph... that could be left to the individual contract terms.
  21. Darth_SnowDog Jedi Master

    Member Since:
    Sep 10, 2001
    star 4
    Ah yes... one more issue.

    With regard to sound recordings... the copyright for works fixed in a sound recording (Form SR) differs from the copyright associated with the lyrics and music, the actual content in its unfixed form (Form PA).

    Record labels of various types, statures and levels of vertical integration (i.e. Indies, minors, major-minors, majors, minors distributing via majors or independent distributors, majors with internal distribution entities, and so on...) have varying degrees of control assumed in their contracts. On one end, some contracts might grant to the record label only the rights to the sound recordings. On the other end of the spectrum, some contracts might grant all rights, including the publishing rights to the lyrics and music, to the record label. ...and everything in between.

    It is critical that bands big enough to get the attention of a major record label consult with very qualified attorneys, versed specifically in entertainment law, to protect their copyrights, and limit whenever possible the rights granted to the record label, excluding the record company from everything but "phonorecord" rights (indicated by a circle-P instead of a circle-C logo).

    In such cases where the record label only has rights to the works fixed in a sound recording... they only have the right to the particular versions, as recorded, grouped into an album, and mastered for mass production by the record label. The artist may, in such a case, continue to re-record, perform live, create derivative works of, and publish the lyrics and music through entities of their choice.

    Rush is an example of a band that retains copyrights and publishing rights, through their own corporation, Anthem, Inc. and, as far as I know, assigns only the phonorecord rights to Atlantic Records. There again, they have enough of a global audience to demand such contractual terms and get a major to agree to them.

    This is precisely why I do not recommend a band jump at the chance to sign with a label... build your following first, like Rush did... with recordings made out of your own basement if you have to... like Rush did... and do not sign anything unless and until such a time in your career when the record companies will fall over themselves to offer you precisely such terms as would leave all creative control and rights, outside of the sound recordings they have financed, to you.
  22. Kimball_Kinnison Chosen One

    Member Since:
    Oct 28, 2001
    star 6
    Snowdog,

    I have to say that I agree with a lot of what you are saying, but you are talking mostly about how the contracts should be structured between artists and record labels. Honestly, I could care less about that (no offense intended). That is something that each artist needs to settle independently with his/her label, through their lawyer. They can negotiate for he best deal possible without any interference from me or the government.

    What I am concerned about, more than anything, is the copyright law itself. For example, you said With regard to sound recordings... the copyright for works fixed in a sound recording (Form SR) differs from the copyright associated with the lyrics and music, the actual content in its unfixed form (Form PA). That follows because a sound recording is considered a derivative work of the written lyrics and music, and therefore carries a separate copyright. However, as I have stated before, most of the points you bring up do not involve the actual copyright law, but the licensing (or in some cases, the transfer of copyright) to another party. Licensing issues should be left to the parties involved, without interference from the government.

    How about keeping the 95-year statutory limit on copyrights held by the original author, i.e. you as a programmer or me as a recording artist, but reducing the statutory limit on grants of copyright to 35 years without automatic renewal?

    The problem with this is that 95 years is still excessive for a copyright. It comes nowhere near what the framers of the Constitution intended by the copyright clause. Copyright was meant to provide an incentive for authors (and others) to create works that enrich the general public by allowing them to profit from them for a limited time.

    Allowing life of the author plus 70 years (which is the current term for copyrights held by individuals) could potentially hold any of my works under copyright for 125 years! (I am 22, assuming I live another 55 years to about the current avearge lifespan.) What good would any of my source code be in 125 years? Technology would have moved on so much by then that no one would care.

    Or, in the case of books, how many books from 125 years ago do people still care about? With only a few exceptions (compared to the number written) almost none of them are remembered at all. To me, at least, that does not fit the intent of copyright law.

    I support works for hire provided they are defined in certain terms by expressly declared definitions set forth in contract terms. The provision of "works for hire" that concerns your line of work, as an example, should not be assumed in copyright law... I feel it should be required to be specified in a release form signed at the time of employment, in the absence of an employment contract.

    That is why I would support eliminating works for hire and replacing it with a mandatory offer of exclusive license. It would force companies to seek contracts of the type you describe while leaving the actual creators a great deal of leverage in negotiations. After all, the purpose was to allow the creators to profit for a limited time to encourage the creators to create works that better society.

    Contrary to how I may come across at times, I am a very big believer in free markets and capitalism. I am all for allowing people (and even corporations) to turn a profit from their work. However, I believe that the people who actually do the work should see (a good portion of) the profits, not someone else who was able to trck them into giving up their rights "for a song" (pun was intended). For copyrights, as long as they remain within the constitutional intent, they can pretty much do as they wish. The problem is we need to return it to that level that the Constitution intended.

    Kimball Kinnison
  23. Darth_SnowDog Jedi Master

    Member Since:
    Sep 10, 2001
    star 4
    First of all, I think the guiding principle of the protection of intellectual property should not be determined one way or another by how popular a work is in x years.

    Secondly, this thread is a discussion about file trading and has somewhat morphed into a discussion about the music industry. I have yet only registered one copyright... for a screenplay. It may take years, even decades, before anything is done with that screenplay... and it may also see several revisions from that time. The original idea was mine, so I would like to be guaranteed credit where credit is due for writing it. In the entertainment industry, the shelf life of a product is considerably longer than it is with software.

    As a matter of fact... the screenplay for Total Recall was written in 1971 but the film was made and released in 1989.

    I'm in full support of at least the "life of the author"... in the case of individual authors, but as far as "plus 70" years, I might consider it requisite that one applies for such a renewal, or upon death (particularly to protect the individual's estate from loss due to an untimely death) the author's estate is given a certain grace period within which they can apply for renewal.

    It shouldn't matter whether or not my screenplay becomes a hit. But I feel that individual authors have the right to maintain copyrights for at least the life of the author.

    Where legal entities such as corporations are authors of original works, I have not analyzed all the factors that could affect my view of how long they ought to be entitled to have an original copyright. However, in the case of derivatives, assignments, grants, etc. I think that 35 years is a good time limit for such derivative, assigned, or granted rights to automatically terminate and revert wholly to the original author (or the public domain if the original author is either dead or doesn't wish to retain ownership). Furthermore, the contractual options I specified in my previous posts warrant statutory definition... in the sense that those options should be outlined in law, in the UCC if not in the US Code, but specified to bear only civil penalties in particular, as any tort would.

    As for original Constitutional intent... the Constitution was originally designed to be a malleable document, amenable to the changing times. As such, though the "original intent" never delineated abolition of slavery, women's suffrage or any other rights outlined in the 27 amendments to the Constitution, they are now there. So I don't think we should rely on "original intent" as a guideline... but rather the most underlying principle of the Constitution which is the balanced protection of the pre-eminent rights of the people.
  24. Kimball_Kinnison Chosen One

    Member Since:
    Oct 28, 2001
    star 6
    First of all, I think the guiding principle of the protection of intellectual property should not be determined one way or another by how popular a work is in x years.

    I agree, regardless of how popular a work is when its copyright expires, it should enter the public domain. After all, the Bible is still the most popular book ever sold. Can you imagine if the text of most translations were still heavily copyrighted what sort of effect that would have?

    Secondly, this thread is a discussion about file trading and has somewhat morphed into a discussion about the music industry.

    As KnightWriter said in the original post, I share this not for the news value, but rather for the debate of whether or not it is right, wrong or even legal for record companies to attempt to sue individual users. Copyright law itself is at the very center of this question of legality.

    I have yet only registered one copyright... for a screenplay. It may take years, even decades, before anything is done with that screenplay... and it may also see several revisions from that time. The original idea was mine, so I would like to be guaranteed credit where credit is due for writing it. In the entertainment industry, the shelf life of a product is considerably longer than it is with software.

    If popularity of a product should be ignored, why should the shelf life be such a consideration? At its core, what is the difference between source code and written speech (such as a poem or screenplay)? Consider this haiku which conveys the exact same idea and concepts as these five lines of code. Should one get expanded protection while the other doesn't because of their "shelf life"? (Disregarding the fact that the haiku has been voluntarily placed in the public domain.)

    As a matter of fact... the screenplay for Total Recall was written in 1971 but the film was made and released in 1989.

    That's nice. As I said before, the various time periods I mention are (and will be) up for complete negotiation. I tend to err on the lower side because I recognize that if my suggestions ever made their way into law, the entertainment industry would negotiate upward from any position I suggest. If that starting position is what we all consider reasonable, then the final result would probably not be reasonable. Even under my original suggestion, Total Recall's screenplay would still be protected for another 9 years. Under pre-1978 law it would still have 25 years left. I'd personally say that screenplays should receive the same protection as any other written work, whatever length that may be.

    I'm in full support of at least the "life of the author"... in the case of individual authors, but as far as "plus 70" years, I might consider it requisite that one applies for such a renewal, or upon death (particularly to protect the individual's estate from loss due to an untimely death) the author's estate is given a certain grace period within which they can apply for renewal.

    It shouldn't matter whether or not my screenplay becomes a hit. But I feel that individual authors have the right to maintain copyrights for at least the life of the author.


    I would disagree here, mostly on the basis of the history of copyright. Let's take a look at copyright terms from a historical perspective:

  25. 1710: The Statute of Anne establishes the public domain and limits the term of copyright, preventing monopolies by booksellers.
  26. 1790: Copyright Act establishes the term of copyright at 14 years with a 14 year renewal available.
  27. 1886: Berne Convention (U.S. did not sign until 1988), allowing recognition of foreign copyrights by signatory nations.
  28. 1909: Copyright Act revised, extending term to 28 years with a 28 year renewal.
  29. 1947: Copyright law codified as Title 17
  30. 1976: Copyright Act revised, incorporating the doctrine of Fair Use (first est
  31. Darth_SnowDog Jedi Master

    Member Since:
    Sep 10, 2001
    star 4
    If popularity of a product should be ignored, why should the shelf life be such a consideration?

    I was actually responding to the notion that you put forth regarding about computer code being of little use to you in few years time because of its short shelf life. I don't think the copyright should vary by shelf-life... or perhaps some people have some good arguments as to why it should be... but mostly I don't like the idea of shortening copyright on the basis of the short shelf-life of code, or extending it on the basis of the extremely long shelf-life of song and word.

    As to the "original intent" issue... I'm trying to point out that while the basic protections of copyright remain, we might find reason to continue amending the terms of copyright when new issues arise. There may be unforeseen technologies that open up all kinds of new categories of intellectual property we have not yet thought of... and newer protections may be necessary. That's why I think it's important to keep the underlying intent of the Constitution as a whole in the backs of our minds when formulating new legislation to further refine and amend Copyright Law to keep it consistent with the continuous emergence of new media.

    It's obvious some aspects of Title 17 pertain to music distribution... but discussing copyright in general does not, necessarily. This is precisely because, as we have discussed, works fixed in a sound recording are an entire category unto themselves with many unique sets of legislation dealing with the unique set of circumstances concerning sound recording media. I have no expert opinion on code or other media in which I am not expertly knowledgeable. Therefore, my statements and opinions here are only meant to apply to copyrights for musical works, whether fixed in sound recordig or not.

    Let me reiterate that whatever changes to PA and SR copyrights may come, I do fully support the disintegration of the juggernaut of the music industry's present distribution model through nonviolent, nonpolitical, natural market forces.

    Given that, it is under certain circumstances absolutely fair for companies to sue individual users who violate copyright law... but let's not forget the 1992 Audio Home Recording Act which declares that copies made for individual use, and not for distribution (whether profitable or not) do not construe copyright infringement. So, if I make a copy of a song, and loan that copy in the form of an MP3 to my friend, directly, it is not likely the record company will have grounds to file civil or criminal actions against me... nor is it cost-beneficial for them to do so.
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