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[BKARTS] Reading the Law to the Lawyer.

> Date:    Wed, 23 Apr 2003 11:51:06 -0400
> From:    "Jeffrey L. Loop" <jlloop@xxxxxxxxxxxxx>
> Subject: A Rejoinder to Mr. Morehouse
> Oh how dangerous is a little knowledge...  As a "Big Corporate Lawyer" (I =
> am actually a litigator in a "Big White Shoe Law Firm"--is that "better" =
> or "worse"?), and as such am fairly well acquainted with the law. =20
> Firstly, as to Mr. Morehouse's ridiculous comment that protecting =
> copyright beyond the life of the author is not warranted; I could do no =
> better than Mr Siegel did in his recent post:=20

With all due not-ridiculous respect, the issue was not about extending
copyright beyond the life of the author. "Mr. Morehouse" never made that
supposed "comment", as Mr. Loop well knows. Read the actual text and
watch the tricky lawyer try to distract you from the real point of

The issue was about extending copyright from the "life of the author
plus fifty years" to "life of the author plus 70 years." The point was
that this was done for the benefit of Disney and other large media
firms, not on behalf of individual authors. Even a Big Corporate Lawyer
should be able to state an opposing argument with more integrity than

Once again, the question I put before this group is for them to ask who
BENEFITS by this 20 year extension. To whom was this so important that
it was passed into law virtually without debate while the country
watched the Clinton Impeachment scenario back in 1998?

Using Mr. Siegel's comments (as shown below) is a shameless distraction
and shows little respect to Mr. Siegel. The question is how much
difference it will make to someone like Mr. Siegel to have his
copyrights extended from fifty years after his death to seventy years
after his death.

The point is that only this has only the most marginal benefit for
individuals, but it has GREAT import for certain large media firms
looking to leverage copyrights that they have acquired.

> >>At 67, I don't have anything but my copyrights to leave my wife and
> children. That's partially the result of the decision to live and work in
> remote tropical beach areas that were being developed into resorts such as
> Cancun. But mainly it's because I only write what I want to write and I =
> only
> publish what I want to publish. I avoid the timely and prefer the =
> enduring.
> I'm confident that these works will not only endure but prosper long after
> I'm gone. I'd be happy to think that perhaps my grandchildren might =
> benefit
> from them, too. I want to see the actual effects of the new law before
> deciding that it's wrong to feel that way.<<

Even his grandchildren would benefit from having copyrights for 50 years
after Mr. Siegel dies. What benefit is likely to accrue to them over the
next twenty year period?

How many works have any commercial value 70 to 100 years after they were

Put it this way: let's assume that Mr. Siegel is as successful and
author as Kurt Vonnegut. Mr. Vonnegut is still alive, and may he long
prosper. Let's assume he lasts at least another 20 years to the year
2023. that would mean that his heirs and estate would hold the
copyrights on his works until 2093.

I am asking you to consider what even classic works like
"Slaughterhouse-five" will be worth in the year 2093. How much will his
lesser works like "Jailbird" and "Deadeye Dick" be worth in 2093? What
would the copyright to normal books and not commercial hits be worth at
that time? How much value would be lost from the year 2073 (the Life
plus 50 period) to 2093 ( the Life plus 70 date)?

Remember, it's been shown that more than 98% of all the books published
between 1924 and 1944 aren't even in print any more. For the vast, vast
majority of books, the long term commercial quickly approaches zero and
stays there.

Ask yourself who really benefits from that 20 year extension.

> If Mr Morehouse does not wish his copyrights to continue after his death, =

Once again, the Straw Man argument. The argument is over the results of
those rights being extended to 70 years post-death and who benefits from
that extension, not the concepts of copyrights lasting beyond a
creator's demise.

> he may disclaim them now or even in his will.=20

Again, the point is that when people had the choice to extend their
copyrights from 14 years to 28 years, the majority never even filed for
that extension. My personal view is that copyrights should be extended
for long periods if the creator files the paperwork and pays a nominal
fee every so often. For those that don't, the works should pass into the
Public Domain.

I don't quarrel with Mr. Siegel and his heirs having the legal
permission to keep their copyrights that long. I am pointing out that
making the term that long by Law has not been done with people like Mr.
Siegel in mind.

> As for Mr Morehouse's comment concerning my suggestion that those who do =
> not wish to protect their work can simply not copyright it:  Perhaps I =
> oversimplified.  It is indeed true that copyright attaches without the =
> requirement of notice or publication (at least since the 1976 Act--and you =
> still need notice to recover money damages for infringement) when a work =
> is first "fixed in a tangible medium of expression."  However, that does =
> NOT magically protect the work; a copyright holder must prosecute =
> violators--there are no Copyright Police roaming the countryside whacking =
> artists who copy about the head and shoulders.  Anyone who wishes to have =
> their work freely copied can simply NOT PROSECUTE anyone who copies.  Or =
> even easier, they may disclaim any copyright in the work.  My point should =
> not have been that hard to figure out if one had the most basic understandi=
> ng of the law. =20

Unless someone made a point of doing this research and following these
laws, that point is not obvious at all. Making a legal filing enhances
someone's ability to prove their ownership in a court case, but it is
not mandatory. Your commentary was giving people the idea that they
didn't have copyright protection unless they filed for it, and that's
not the case.

>Anyone who wishes to have their work freely copied can simply NOT
>PROSECUTE anyone who copies.

Rather than coach people to engage in negative action, it would be
easier just to note that they can publish under a Public License in the
first place where copying is expressly permitted. They can still reserve
any other assortment of rights that they choose.

For those interested, look at the variety of licenses offered by the
Creative Commons group. Or at the Open Content License. Or the Open
Publication License. Or the Free Documentation license. Or the BSD
Public License. In my world, that of Intellectual Property as it relates
to computer code and documentation, this is not only common, but
dominates the field.

Traditional "Copyright" is only one of many publishing alternatives, and
I find it interesting that you didn't point out any of these

In the worlds of scientific research and publishing, there is a whole
universe called Open Access that offers other ways than the traditional
ones there as well. Your implication that an author either faces
"Copyright or No Copyright" is the False Alternative referred to below.
There are many other ways to publish.

> As for the assertion that the copyright extensions upheld in Eldridge are =
> more problematic than the expansion of the patent laws: perhaps you should =
> read some patent law cases before you make such bland statements as "I =
> wish you were correct about this..."

Let's say that experts disagree on the relative strengths of the imports
of Copyright and Patent legislation. You are welcome to your own
evaluation. Just categorize it as opinion, not fact; the relative
strengths vary by the field affected.

Software Patents are a huge and serious issue in the programming
community and I'd have listed the reasons why, except that this forum is
not about computer code or "life forms". This is about book Arts.

> Try starting with State Street Bank =
> for one, or perhaps Diamond v. Chakrabarty, 447 U.S. 303 (1980) (holding =
> that life forms are patentable).=20

Unless someone is crucially involved in these areas, the distinctions
aren't useful to point out.

> As for Mr. Morehouse's complete and utter misunderstanding of Mazer v =
> Stein.  Yes, it was about lamps (actually about statuettes that were part =
> of the lamps).  However, anyone familiar with our common law system and =
> the way our courts write opinions  (or indeed anyone who actually bothered =
> to read the case rather than the head notes) would realize that the Court =
> was expounding on the nature of copyright--not the nature of copyright as =
> applied to lamps. As such it has direct relevance to books, as well as to =
> paintings, photos or any other copyrightable work.  Really, I feel silly =
> having to explain that point as it is so completely obvious.

Oh boy. How many people in this group have ever been tempted to sue
because someone reproduced copies of their books as the bottom of a desk

Don't be so dense. The realities of copying a sculpture and making that
copy into a lamp just do not apply to the realities of Book Arts. When
we speak of people illegally 'copying books' we don't refer to someone
actually making a complete replica of the physical book itself. That is
not the kind of Intellectual Property violation that occurs here.

Really, I feel guilty having to explain that point as it is so
completely obvious.

My point was that if you wanted to make a point about court decisions
and copyright as it effects Book Artists, that you probably picked an
example that ranked in the Bottom 1000.

> As for Mr. Morehouse's poor memory of Philosophy 101:  The analogy I =
> provided for why protection against copying was a good thing was not an =
> example of the Fallacy of the False Alternative.  This Fallacy is best =
> illustrated by the following example: "Today is Saturday or Sunday  Today =
> is not Sunday.  Today must be Saturday."   This is false because it fails =
> to recognize the other five alternatives. What other alternatives did Mr =
> Morehouse believe I left out?  Taking the door?  The toilet? The point =
> remains the same.=20

See above: If you want to publish, you have many alternatives, not just
Copyright or "Give up copyright'.

> Mr. Morehouse comes closer to the mark when he calls my argument a Straw =
> Man Argument.  This occurs when an argument is made that overstates or =
> exaggerates the other side.  Perhaps there is a valid argument that my =
> "stealing the roof" analogy is overstated

It is not only overstated, it's almost irrelevant to this venue. People
who make illegal copies of books do not take the original book away from
someone else. Same with digital reproductions.

For physical items, the mechanics are different: I cannot give away the
roof of my house and still have a roof on my house. However, I can give
away a copy of a computer file and still have the original file. I can
make a photocopy of a book and still possess the book.

Is this distinction lost on you?

> --however, I submit that it is =
> not, especially if one remembers that many, many artists must live on the =
> proceeds from the sale of their art.  Proceeds that "put a roof over their =
> heads" and proceeds that can be diminished or lost if their art is =
> copied.=20

Dance, lawyer, dance. You are using the word 'roof' in two completely
different contexts. One is physical, one is metaphorical. I don't think
you are confusing the Book People. We know the difference.

> Regarding  Mr. Morehouse's suggestion that my explanation of the distinctio=
> n between copyright and trademark law "doesn't state the case properly."  =
> Well, Mr Morehouse, you are dead wrong.  While it does not state the case =
> fully, as to do so would be the work of volumes (indeed it is the work of =
> several volumes).

That is the actual point. Your attempt to simplify the subject didn't
begin to give people a real impression of the issues involved and it
wasn't fair to leave them thinking it did.

> There have been several insightful posts concerning =
> some of the nuances of trademark, trade dress and copyright (see, e.g., =
> Mr. Minsky's post). However, my point was that trademark, etc. protects =
> only indicia used to sell things or services--indeed it usually only =
> protects them from competing products or services (That is why you have =
> Viking Stove and Viking Pest Removal).   The use of a mark on something =
> that does not compete, for example in a painting, or a book, generally =
> would not violate tradmark law, especially when used in a parodic manner =
> (although the more commercial the use, for example on t-shirts or whatnot, =
> the more likely it may be found as infringing).  Mr Morehouse is correct, =
> however--this area of the law is complex if you wish to produce a product =
> that uses a parody of a mark.  It is best to check with a lawyer. =20

That's the whole point. It's more complex than a newsgroup discussion
can address.

> Which brings me to perhaps my most important point. Many have bemoaned the =
> fact that little copyright holders are powerless to defend their marks and =
> only the big bad corporate types can do so.

Using your language, it's not that little copyright holders are DE JURE
powerless to defend their 'marks', it's that they are DE FACTO incapable
of providing the means to do so.

I have seen Disney and Paramount prosecute numerous small firms for
alleged 'violations' of their copyrights and trademarks. However, how
many of the people on this group could successfully sue Disney or
Paramount even if they were legally in the right?

Under the law, an author has legal rights to claim. Having the means to
protect and secure those claims, though, is often barely possible in the
real world.

Again, the overall point is that the extension of copyright has been on
the behalf of large firms who use lawsuits as weapons of business

> Nothing could be further from =
> the truth.  The Volunteer Lawyers for the Arts (to give just one example) =
> is an organization that provides or places artists with lawyers who will =
> work pro bono on their cases (not only for infringement, but also for =
> corporate matters or what have you). In fact, many of the lawyers who do =
> this pro bono work are the mean ol' "Big Corporate Lawyers."  If you want =
> more information, the following site lists many of the local VLA =
> chapters:=20
> http://www.starvingartistslaw.com/help/volunteer%20lawyers.htm
> And here is the NY chapter: http://www.vlany.org/
> In closing, I would like to say this:  Ideas are never copyrightable, no =
> matter in what from they are described or explained. See 17 USC =A7 =
> 102(b).  It is the author's particular original expression of description =
> or explanation itself that is protectable.=20

Good for you. You got something right and that was well said.

> Regards,=20
> Jeff Loop
 "In the UNIX world, people tend to interpret `non-technical user'
  as meaning someone who's only ever written one device driver."
                                                  --Daniel Pead

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