I just read about this at BB, and thought "I wonder what ML has to say about this?".

It's at this stage that the people responsible, if principled, would resign.

I want Scalzi back from his hiatus. I want to see what he's going to say.

I think I'll go buy some popcorn.

John is an independent-minded fellow. I'm always interested in what he has to say, but I don't count on him to always agree with me.

It's my own belief, based on due consideration of the evidence, that this sort of thing constitutes grotesque misbehavior by the SFWA.

Not that I'm suggesting it should be used, because on the whole I have a lot of respect for the SFWA, but there are provisions in the DMCA to penalize those who use it to request removal of works they don't have appropriate authority over.

The relevant section appears to be:

Sec 512 (c) (3) [...]
(A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
[...]

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(emphasis mine)

PNH @3:
I don't count on him to always agree with me.

I'm sure he'll be crushed to hear it. </snark>

More seriously: I am interested to see how you people* with the knowledge and experience parse this issue. I have an interest - as does anyone who reads SF&F - but I don't have a lot of value to contribute to the discussion.

Thus, popcorn.

-----
* (I type to the sound of furious marking of Bingo cards)

It's worth noting that the Aug 17th e-mail that Burt claims in the Aug 23rd e-mail was a DMCA takedown notice was actually no such thing, because it didn't include the required statements of sections (v) and (vi) as I quoted above. I'd suggest that therefore no legally-binding takedown notice has been served, but obviously that's not legal advice and scribd should consult a lawyer about possible consequences before restoring any of the works, etc.

Are there any SFWA events or SFWA officers as program participants at Worldcon this year? That would seem to me to be a good high profile place to Get Some Answers.

If the SFWA Contacts web page is up to date, it appears the pertinent contacts for this issue are probably Andrew Burt (Chair of the Copyright Issues and E-Piracy committees) and Bruce Plotkin, SFWA Legal Counsel.

*Ugh* There are so many levels of wrong here, it's hard to count them all.

It's hard to imagine what SFWA was thinking here. Do they really think the mere use of the name "Asimov" infringes on copyright? And how could they possibly think Cory would want to withdraw "Down and Out in the Magic Kingdom" from circulation? Cory's books exist in practically every electronic format known to man. (Many of them even exist as Newton ebooks.) It's hard not to see their assertion of copyright agency over Cory's works as Making a Statement of Some Sort. (Or, yes, it could be sheer incompetence. But that's a statement too.)

I've always gotten the impression that SFWA views ebooks has some sort of evil to be stamped out. (I mean, the "e-piracy" committee? Are we not admitting to the legitimate uses of modern technology?) Now, this is a position which makes no sense to me. (One might as well say that we shouldn't publish paper books either because they too can be easily copied and distributed.) But there's no reason for any organization in the world to share my positions.

However, this is the sort of flitgun approach to copyright enforcement that the bad buys use. I'm not a DMCA fan, but it's the law. So copyright agents have the right to issue takedown notices. But SFWA doesn't seem to have noticed that it is not the copyright agent in many, if not all, cases. It's terrible that an organization which should be looking out for authors' rights is usurping them instead. When SFWA behaves like the RIAA, something is very wrong.

I realize that SFWA does great, and valuable work with the Emergency Medical Fund and Writers Beware. However, I hope they get slammed here. It would only make SFWA a better organization. (i.e., if they want to take an anti-ebook stance, there are less asinine ways of doing it.)

just wondering, is this a riposte to the whole "pixel stained technopeasant' ridicule of SFWA of a few months ago?

and JC "(Many of them even exist as Newton ebooks.)" had me choking on my coffee!

Don't blame me - I endorsed Scalzi.

What's this business with the SFWA having sponsored the development of "Shades of Grey"? Do other writers' guilds police the Internet with such fervor?
:-S

What has the SFWA got against people who like sf/f? This is beyond ridiculous.

Mr.Burt "signs" all his emails in a "funny" way:

Vader said, "Luke, I am your feather." Bothered by typos? Avoid pirated ebooks.

This guy probably feels he's a Holy Warrior against the Dark Forces Lurking In The Dark Ready To Steal My Loot.

God forbid we have people reading science fiction in this day and age. It's a good thing the SFWA is around to put a stop to things like that.

Holy fckng hell, that's appalling.

From the 8/23 email, in reference to his proposed "solution" requiring uploaders to make a Formal Statement Of Their Intent: This (a) deters pirates from uploading because they would have to answer falsely, and (b) puts liars on notice that scribd will cooperate with copyright efforts and provide information about them.

1. Who the hell are they to dictate policy to an outside organization?

2. Has this person ever actually met illegal downloaders? Ever? Or has he ever only seen them on TV, like maybe in that "I Fought The Law" Pepsi commercial?

3. SFWA purports to represent the copyright owner of "Classic Erotica - The BBS Era"? Seriously? Because that doesn't sound like a spec-fic title to me. (And nor does "New AP Lang Syllabus - CC & MA".)

"Classic Erotica - The BBS Era"? Seriously? Because that doesn't sound like a spec-fic title to me.

Given the context, I would guess it includes references to (and perhaps quotations from) slash fic based on either Asimov's or Silverberg's work. There's at least a plausible claim in this case. Unlike many of the others highlighted.

Ouch. May a new organization rise from this like a phoenix from ashes; it'd be about time -- whether that means they get their act together, or whether some other SFWA-like-except-more-functional organization comes to be.

I can draw some parallels to how Livejournal is repeatedly shooting itself in the foot, clawing the fail darts back out, stanching the bleeding, and then shooting itself in the foot again.

But SFWA is smaller than Livejournal; it's a professional organization; and its existence and credibility depends on its professional standards. It hasn't got as many spare feet to spend on this kind of procedure.

I haven't been involved with SFWA for over a decade now. Can someone please give me some context and/or background for what they're doing? I mean, is this part of a trend (implied by 'latest stunt'), or an aberration?

I do actually like the statement of intent thing, though -- I think it may be the one sane piece of all of this. I could have missed something (it's five-thirty in the morning here and I'm running on a few days' sleep deficit) but, when* implemented correctly, policies for Internet devices which put the responsibility on the user and not the device = good. Better than the other way around. Yeah.

*qhwn in the original sleep-dep typing dialect, translated for your convenience.

Mr. Doctorow should be contacting the Electronic Freedom Foundation. They'd be more than willing to help as they are definitely not fans of the DMCA.

Let's not jump to conclusions. Why? A few years ago, Preditors & Editors posted an article about voice to text writing. The article is still there, but it was briefly blocked because of a DMCA demand sent to our host by BayTSP, Inc. which represented the manufacturer of the product that was reviewed (favorably, no less) in the "offending" P&E article. I had to contact the manufacturer in order to call off BayTSP. Then to compound that, BayTSP did the same thing to another site a few months later so I passed along the contact information to that site.

In other words, if a company like BayTSP is involved on behalf of SFWA, then SFWA might not be aware yet (though I'm sure some of you are making that so at present) of what transpired in its name. What's worse is the fact that companies like BayTSP are operating with very little guidance and their contact information is often sadly inaccurate or lacking. That's why I had to go through their client. I couldn't reach BayTSP directly.

I'm speculating that many of the companies like BayTSP do not actually use human oversight in order to determine if an online site is violating copyright law or operating within the "fair use" limitations of copyright. If they were, then mistakes like the ones BayTSP made wouldn't have occurred. Instead, they're probably relying entirely upon a software program searching the web for occurrences and automatically sending out DMCA letters regardless of how the copyrighted material was referenced.

I've written the editors at Ray Gun Revival, one of the parties mentioned in the BB article, and asked them to clarify their position on this matter. RGR is a small, semi-pro ezine, and I doubt any of its contributors are represented by SFWA (I know SFWA doesn't represent my copyrights). I suspect that Asimov might have been mentioned in an editorial or something, triggering Mr. Burt's idiocy.

I'll report back when I know more.

Eeeuw. I'm no fan of electronic piracy -- my stuff is almost entirely epublished, and I know books from my publisher are being pirated. But this sort of idiocy makes it *harder* to convince people that Piracy Is Bad. SFWA certainly hasn't done me any favours by this action.

Dave #21: No jumping here. The posts that Cory has made quote SFWA Veep Andrew Burt hisownself; there's no question that SFWA -- via its officer -- is aware of the actions being taken.

Dave@21 -- in this case, the takedown notice was sent in a personal email written by SFWA Vice President Andrew Burt, acting on behalf of SFWA, later affirmed in subsequent correspondence.

Re: #19: I agree that putting responsibility on the user is a good thing, and it might even get good-faith users to take a look at their uploads. However, I very much doubt that the "e-pirates" would stop uploading rather than "answer falsely". It strikes me as a bit like assuming that real pirates, after having robbed and burnt their way through several merchant ships, would be put off burying their treasure on a particular deserted island because of the "No Trespassing" sign.

An editor at Ray Gun Revival talks here:

http://phywriter.com/archives/2007/08/28/sfwa-issues-misguided-rgr-takedowns-at-scribd/

Good lord. I mean, GOOD LORD. Isn't SF supposed to be about creative engagement with the future?

Dorothy (18): You know how you always think that SFWA's finally managed to be as dumb as it's possible for them to be, and then a few months down the road they'll have thought up something to do that exceeds the previous benchmark? It's like that.

Andrew Burt is one of those writers who ekes out a SFWA membership, then gets tremendously active in SFWA projects and policies, putting far more effort into it than he appears to put into his writing. He thinks he understands copyright, bookselling, e-piracy, and the internet. This belief of his does not meet with universal agreement. Talking a good game is the curse of SFWA.

A while back, Burt got SFWA to put up thousands of dollars -- quite a large sum for the organization -- to fund development of his proposed project to block e-piracy. The bad news is, his idea was to flood the channels with corrupt, munged versions of SF and fantasy works. Not only did he think this was (a.) unbeatable, and (b.) a good idea, but he thought the project could be made profitable by selling it to other publishers. The good news is, he never did the development, so maybe SFWA will get its money back. They'd have a better case if they hadn't elected him Fruit Punch Czar.

Burt has promised to repay SFWA its development money by a set deadline ... more than once. We'll see.

As for the huge and threatening problem of e-piracy, the crusade that launched Andrew Burt's SFWA career: Do you, Dorothy Rothschild, read SF and fantasy as pirated e-text? Does anyone you know read SF and fantasy as pirated e-text? Have you heard of anyone reading SF and fantasy as pirated e-text? Do we have just a teeny bit of cognitive dissonance here?

John Scalzi has a much smarter take on these issues.

Adam, Cory, thanks. Just found the rest of the story. Don't know why Andrew is jumping that way. I'm sure the intention is good, but the method is certainly faulty in this instance.

Personally, I think the DMCA is one of the worst thought out laws ever conceived.

In the meantime, I hope Andrew and the SFWA get this resolved and leave copyright enforcement to the copyright owners. As an alternative, the SFWA might offer advice and resources to those authors in need of assistance, but enforcement should be up to the copyright owners and those directly tasked by the owners through contractual agreements.

I'm wondering if someone will get the right idea.

1) Stop talking about this.

2) Have your agent and lawyer *start* talking about this. Pointedly. On letterhead, and if need be, in formal layouts filed in the appropriate jurisdictions.

SFWA is trying to use the law. Why aren't you? And why are you hamstringing your lawyer?

If some of you were to wander over to BoingBoing, read Cory's (long, furious) post, and drop in on the comment thread, you'd be welcome. Just don't use the "post anonymously" option. We're having a real problem with that.

I'm with Abi, munching on popcorn. This is Not Okay. I don't have much to add to the conversation beyond amplified versions of that.

I'm not a SFWA member, but can I put in a request for a "Draft John Scalzi" movement? So that by the time I'm qualified SFWA would have pulled it executive-branch head out of its RIAA wanna-be bum.

I mean, hasn't anybody really thought Mr. Burt's actions (including the - IMHO - market poisoning "Shades of Grey" stupidity) through? It's obvious to me that Mr. Burt hasn't, but there's plenty of really smart people in SFWA and I think they would have brought these things to his attention.

Erik (31), because it's not just this specific case. It's also public understanding and public policy. Cory's no fool about legal cases, but he's laid the whole thing out at length in BoingBoing.

Erik Olson, #31:

"SFWA is trying to use the law. Why aren't you? And why are you hamstringing your lawyer?"

Don't be silly. Cory certainly has legal counsel. Why are you assuming otherwise?

(I was also a bit amused at Rob Hoffmann's no doubt well-meaning advice in #20, that Cory speak to the EFF. Cory is a former European Director of the EFF and a recipient of the organization's Pioneer Award. I think it's pretty safe to guess he's been in touch with their legal folks.)

Hmph. For years, my goal has been to join the SFWA. I'm rethinking that, now.

Rob Hoffmann (#20): You probably meant the Electronic Frontier Foundation, which (as Patrick has pointed out) Cory is very familiar with already.

And yes, by my extremely not-a-lawyer understanding of the DMCA, that is not a takedown notice any more than a syllabus for a course is an Asimov novel.

Y'know, the other day we had to buy Sudafed by taking a card to a pharmacist and getting this "restricted material." Yes, it's true, an ingredient in Sudafed can by used to help make meth.

The US Sudafed restrictions are, somehow, attached to the Patriot Act.

The round-and-round "logic" of a few SFWA officers use of DMCA is similarly bizarre, overreaching, and way, way inappropriate.

Time to pull out my Pixel-stained Technopeasant Wretch avatar...

Still, Erik was asking a legit question.

Here's my current question: Did SFWA actually, formally approve this mechanism Andrew Burt set up? I can't believe they wouldn't have spotted the problems inherent in searching for common skiffy names and, on finding them, automatically sending out DMCA takedowns.

Furthermore, if Andrew Burt didn't see the problems that would cause, he's been grossly misrepresenting his expertise to SFWA all along. That little embarrassment, plus exposing SFWA to potentially ruinous legal liability, plus making SFWA look stupid, venal, corrupt, tyrannical, and incompetent in the eyes of the public, seems reason enough to remove him from office.

Who would have thought a SFWA Vice President could cause so much trouble?

(I was also a bit amused at Rob Hoffmann's no doubt well-meaning advice in #20, that Cory speak to the EFF.

Also, note that the name of the organization is the Electronic Frontier Foundation, not the Electronic Freedom Foundation.

#12: What has the SFWA got against people who like sf/f?

Forget sf/f, what does Andrew Burt have against science and technology? I'd expect this from the Luddite Tracts Writers Association, not an organization theoretically made up of people excited about the future.

I've always found Burt's pontificating on copyright to be infuriating, but this latest stunt shifts my opinion from "terribly misguided" to "thuggish and mean-spirited."

Sometimes I wish I had time to write, so I could join SFWA and then resign in a huff.

I'm amused (slightly) at the fact that Burt's web page links over to the Copyright Owners' Control of Access (COCOA) site, which, in turn, makes all sorts of wonderful claims about how an author should be able to determine who can see their works online.

I'm not sure if Burt's being hypocritical here, or if this whole charade isn't an attempt to force folks to get on board with his particular set of projects (COCOA and the project Teresa mentions at #29).

Scalzi's shown up in the BoingBoing thread.

I'm reading here, too.

The irony is that today is the last day to get SFWA dues in, and I have to decide whether I want to bother. This isn't helping any.

Patrick @#37, I was (perhaps charitably) assuming Rob was trying to bring the funny. It's sort of hard to imagine anyone being familiar with both Doctorow and the EFF and not knowing that connection.

John, pay your dues. What's the use of leaving SFWA if you don't have time to write a spectacular SFWA resignation letter?

Or maybe not. If you give them money, they'll just think of further things to do with it.

I'm just hoping this is actually a brilliant machination by some of my favorite wicked smart authors as the first step in their cunning plot to get the DMCA overturned. Just give us a little hint guys, please? We promise not to tell...

On a related note, what do you want to bet that the scraper was written by AndyBoy? Very well thought out use of regex there buddy, I can't wait to see your e-text mangler!

If John's not a member, can you still elect him president?

Aspiring author alert: Once I have enough time to edit some of this crap sitting on my harddrive (thesis, new house, and wedding seem to have swallowed time), I want to submit it. And I'd want SFWA to be a functioning org. if I ever have enough sf publications to join. Besides which, they should be promoting the genre which benefits readers, aspiring writers, and professional writers alike. Gah.

Dave Kuzminski @ 21

they're probably relying entirely upon a software program searching the web for occurrences and automatically sending out DMCA letters regardless of how the copyrighted material was referenced.

Automatically issuing takedown notices without human oversight strikes me as incredibly bad policy, both globally and locally. Locally, SFWA is liable (sic) to get itself into a really nasty tangle of lawsuits, and possibly even criminal complaints*, and globally, it sets a really terrible precedent for ethical behavior on the part of professional organizations. Makes me want to ask, "what part of professional don't you understand?"

* Has anyone ever treated an invalid takedown notice as attempted extortion?

#40:Teresa, Michael Capobianco responded to the blog post referenced in #27. To his credit, he apologizes for SFWA's actions. However, he writes:
"SFWA is trying to help scribd develop a policy that would do something about all the copyright violations that are posted there, and it appears that your magazines were inadvertently added. If so, I’m very sorry."

Whether or not SFWA formally approved of this, it looks like the SFWA VP committed the action, and the SFWA President knows about it.

#51 - so that means Michael Capobianco is just Bush to Andrew Burt's Cheney, but Burt's way more obvious?

TNH - isn't either Michael or Ann a lawyer in real life? Wouldn't one of them have noticed that this was a really bad idea? I'm not a lawyer and what SFWA has done just reeks legally.

Sonny Bono's grave belongs at the main intake of some giant sewage treatment facility...

[He was the person most responsible for DMCA...]

As for SFWA kerfluffle... it's traditional for something controversial to explode it in. There are what, more than a thousand members? As with any other organization with elected officials, sometimes the officials do things that the membership doesn't approve of/angers the membership/etc.

The demise of the Boston Computer Society involves a complete lack of oversight with the Board of Directors throwing everyone else out of the room (which is not supposed to be legal for a nonprofit organization...) except for the corporate counsel to continue with its meeting (I was one of the people thrown out of the room...). There were no provisions to boot anyone off the Board, and their actions and decisions caused the organization to go out of existence. It should have been avoidable, but there was no way for upset members to change anything--most of the members never voted, and again, there were no recall procedures to remove members of the Board of Directors.

That $70 isn't exactly burning a hole in my (or, more accurately, Shira's) pockets right now, either. Buys a lot of pasta, ground turkey, and school supplies.

Andrew Burt is the President of SFWA now. (He ran unopposed as far as the ballot was concerned.)

He has, iirc, paid the Shades of Grey $$ back. Nice to see what SFWA's doing with that money. (If the algorithm works so well, why did it catch a syllabus?)

Okay, if you want a good chuckle, check out Burt's bio page which is loaded with ironic highlights like these:

• Chair, The Copyright Owner's Control of Access (COCOA) Association
• Open Source (and Open Fiction) advocate (profiled in Salon Magazine)

Alas poor Yorick!

Laurie @ 39

It's in the re-authorization of the Unpatriotic Act. A very large chunk of it has to do with meth precursor regulation, never mind that probably 98 percent of the people in the US wouldn't have a clue how to make it even if they wanted to.

Let me get this straight. SFWA decided to assign itself the job of enforcing copyright of other people's works? That SFWA had no business enforcing?

They issued takedown notices for Cory's work, and they don't have any legal connection to the rights to his work to be able to do that?

Do I understand this correctly? If so, we're talking about a historic new low in idiocy.

Copyright has always been a matter of choice for the author / rights holder to enforce or not. It is not like trademark where not enforcing trademark can result in the loss of the trademark. It's up to the author / rights holder to decide what will and will not be enforced. Not some self-appointed, uninvolved, third party.

Does SFWA really have so poor of an understanding of the most basic concepts of copyright law that they pooched this entirely?

Have you heard of anyone reading SF and fantasy as pirated e-text?

I confess! Well, sort of.

I confess to having downloaded pirated copies of Roger Zelazny's Amber series from some site in Finland a few years back. (They did have spelling errors from the scanning process - I fixed them.) Of course, I also own the paper copies of these books (and many other Zelazny novels besides). I play the Amber role-playing game, and I can't get 'grep' to work on paper. Etexts let me skip to the section I want to re-read.

I will also confess to having read a few books for the first time in their electronic versions. One was Lud-in-the-Mist, which is not so much pirated as public domain (and was out of print at the time). Another was Charlie Stross's A Colder War, and when I saw it in the collection Toast I bought that too.

To end my confession, I admit to purchasing a large number of books without any royalties going back to the author. Some call them "used books".

Wow.

Talk about an understanding of the internet and copyright that makes Ted Stevens look like Richard Stallman.

PJ: And I hear a lot of meth production has been "outsourced" to Mexico, which has no restrictions on sale of Sudafed.

G. Jules @ 26:

It strikes me as a bit like assuming that real pirates, after having robbed and burnt their way through several merchant ships, would be put off burying their treasure on a particular deserted island because of the "No Trespassing" sign.

I seem to have seen (performed in, actually) a comic opera to that effect. Let me see, how does it go again?

SERG. To gain a brief advantage you've contrived,
But your proud triumph will not be long-lived.
KING. Don't say you are orphans, for we know that game.
SERG. On your allegiance we've a stronger claim --
We charge you yield, we charge you yield,
In Queen Victoria's name!
KING. (baffled) You do?
POLICE. We do!
We charge you yield,
In Queen Victoria's name!

[Pirates kneel, Police stand over them triumphantly.]

KING. We yield at once, with humbled mien,
Because, with all our faults, we love our Queen.
POLICE. Yes, yes, with all their faults, they love their Queen.
ALL. Yes, yes, with all their faults, they love their Queen.

[Police, holding Pirates by the collar, take out handkerchiefs and weep.]

Laurie #60: Well, that would explain the sudden interest in letting trucks from Mexico have freer access to the US...

Wow, and to think my ambition was to join this bonehead organization. I think we should start calling Capobianco "Ernie" (because it goes with 'Burt').

Teresa @18:
Have you heard of anyone reading SF and fantasy as pirated e-text?

My hand is up. I've needed quotes from A Civil Campaign twice in the last year*, and can't get them verbatim without going to the box** where both our copies† are stored‡. I Googled on some distinctive phrasings from the book, and found a site. I don't link to it, or save the link.

-----
* fair use, plus added enticement to read
** now across the North Sea, for added fun
† hardcover to keep (even if it is perfect bound) and paperback to read & lend
‡ along with at least one copy of pretty much everything else LMcMB has written, mostly in hardback

#37 Remus: Hmph. For years, my goal has been to join the SFWA. I'm rethinking that, now.

Yeah, me too, although I do think the Emergency Fund stuff is a good idea. But the allure of saying "Hey, I'm a member of SWFA" has been rubbing off in the last year or two.

The collateral damage done to readers and fans in the name of copyright seems pretty egregrious. But acting on behalf of authors who may not want your services....eeesh. I don't wonder that Cory would be pissed about having Down and Out axed in his name AND then having readers assume that he's acting the hypocrite with regards to copyright.

This road, it is paved with pigeon droppings. Oh, wait, no, those are good intentions.

#52: Well, I don't know either Michael Capobianco or Andrew Burt at all. (My only connection to either one is that Andrew Burt runs Critters, of which I'm a member.) So, I have no clue what their governing relationship is like.

#57: That's my understanding of the situation too. I have to admit that I don't get how this happened.

I guess it's not impossible that the Asimov estate asked SFWA to enforce the DMCA for them. I would have thought the Asimov estate have their own people for this, but let's assume for the sake of argument. However, to do this by issuing a takedown notice for every document with the name "Asimov" in it doesn't make any sense.

Laurie - the Mexican drug labs are not a new phenomenon, but are apparently increasing recently. They don't buy over the counter Sudafed, they buy metric tons of pharmaceutical-grade ephedrine powder.

I found some DOJ numbers from 2006. I could be wrong, but I see mention of import restrictions in Mexico, and I've heard that the export of bulk ephedrine from US manufacturers is not controlled...

When Scientology served a bogus DMCA complaint against hundreds of pages at my site, I considered it an act of perjury, since what I had posted (raw data taken from their publications) does not have copyright protection in the US. However, perjury is very rarely prosecuted in the US.

The DMCA (if not abolished) should provide direct, automatic penalties for abusers of the law, as well as compensation for those subjected to a bogus takedown. As it stands, ISPs and site owners can sue for damages, such as loss of income, but as my site generates no income, the law offers nothing to me, nor to my site visitors who were deprived of that information until the two week safe harbor period expired.

True, Sonny Bono bears some blame for the DMCA, but Texas Republican Lamar Smith is still alive, and he's been a huge proponent of harsh and anti-consumer content law for years.

While one should not attribute to malice anything that is adequately explained by stupidity, any sufficiently advanced stupidity is indistinguishable from malice.

I must go elsewhere to read more to find out What the Hey about this.

A visit to Scribd showed two new uploads - "Isaac Asimov" and "Robert Silverberg" with the description "Description: Testing a theory. See http://www.boingboing.net/2007/08/30/science-fiction-writ-1.html for more details."

The only text in the uploads were the authors' names.

Well, it appears that the president of SWFA is now claiming that (contrary to the second e-mail sent by the VP) they really *weren't* take-down notices, and that it's all Scribd's fault for taking the files offline......

Are these guys taking lesson from the Bush/Cheny camp?

#71. If Mr. Capobianco wants to state that they weren't takedown notices, he'll be arguing with Mr. Burt's e-mail that clearly states otherwise.

More imporantly, we need to see those current infringing files removed post haste. I sent you lists for Asimov, Heinlein, and noted that the other author names are likewise -- you need to remove those, as that wasn't idle musing, but a DMCA notice.

We need less spin from SFWA and more ownership for their *.* dragnet.

I think it's pretty clear at this point that the SFWA's foot tapping and gestures under the stall were clearly mis-interpreted by Scribd as DMCA advances.

Lance, are you saying that SFWA has a wide stance?

Oh! I just figured it out! They're trying to boost membership and hope that periodic kerfuffles like this will entice folks who want to get their hands on the members-only info.

From the BB comments thread, here is the referenced text of the SFWA prez's claim:

--------------------------

From SFWA President Michael Capobianco's draft statement:

"Despite what may have been said or implied, SFWA did not send DMCA takedown notices for the works that were removed from scribd.com. There are certain procedures involved in filing a DMCA notice, and the communication between SFWA and scribd.com did not fulfill any of them. The owner of scribd.com took those works down on his own responsibility as owner of the website and his claim that he did so because of a DMCA notice from SFWA was in error."

Yep. Basically saying, "Aw, gee! If those boneheads at Scribd misread the line in VP Burt's email where he said that this wasn't idle musing, but a DCMA takedown notice, that's their problem."

Furious!!!
---------------------------------

You know, even given that this is described as a "draft response," this assumes a level of stupidity on the part of the SWFA membership that is, from my observations, not at all warranted.

John #74: Heh, not only that, but it looks like certain SFWA VP's like to sling around their credentials while sneering "What do you think of that?" (ref #72)

Craig @76: that draft really shouldn't be repeated in public. It was a draft for comment, got commented on real good, and has already been withdrawn and redrafted -- and it isn't even public yet.

On the basis of what I've seen, Andrew Burt needs to be made to resign. I'm not entirely sure Michael Capobianco shouldn't be induced to walk the plank at the same time, but I'm willing to give him the benefit of the doubt for the time being.

Shall we start a pool on how long this takes to hit Slashdot?

Way to piss off your customer base... (and, yes, software geeks and DMCA fanatics do buy books.)

While that list is admittedly long with pirated versions of Asimov's work, I have this sneaking suspicion that if I posted my (really, horribly awful) high school essay analyzing Foundation on Scribd, it would be taken down. Are they going to start sending DMCA notices to all the lit journals that have dealt with Foundation, mentioned Asimov in a discussion of genre, or any of the essays on books mid-century and are easily avalible via...the internet??

Charlie #78: Any chance I can get a one week SFWA trial membership?

What's that? Well, yes, I would like access to the forums as part of the trial, but just to, you know, absorb the collegial atmosphere...

Charlie #78

Maybe I'm missing something here, but how the hey did a draft-for-comment wind up getting sent to Scribd, with a follow-up, and them taking action on it?

Jim, the draft-for-comment was Ernie's public response to the outcry over the email sent to Scribd by Burt, which were misrepresented by him as DMCA takedowns.

Craig #76: Charlie is absolutely right. I took that snippet from a private board, and I shouldn't have done so. I've asked to have the comment deleted from BB, and have publicly apologized to Mr. Capobianco, but I'm afraid it's become a matter of barn door & horse.

I will be very interested to read Mr. Capobianco's official statement.

it appears that the president of SWFA is now claiming that (contrary to the second e-mail sent by the VP) they really *weren't* take-down notices, and that it's all Scribd's fault for taking the files offline

Good grief. Someone put a down payment on a backhoe to dig themselves even deeper.

Have you heard of anyone reading SF and fantasy as pirated e-text?

Hi!

I have on my hard drive 36 pirated e-texts -- 45 if you count the Amber books as ten volumes instead of one. You can divide these about equally between "books I downloaded after buying the deadtree, for greppability/portability", "books I downloaded to read and see if I liked them, and subsequently purchased in deadtree", and "books I downloaded to read and see if I liked them, but forgot to read". (The exception is Lord of Light, which I didn't like enough to buy, but did like enough to keep around in case I want to read it again and decide if I like it more. I just put it on my Amazon shopping list.)

In addition, my downloading of books often leads to more purchases than just those books. I downloaded The Atrocity Archives, because Scalzi's endorsement wasn't quite enough to make me risk money on "Lovecraft and BOFH humor", both genres I'd seen backfire too much. As a result of that download, I bought Atrocity Archives, preordered Jennifer Morgue, and bought everything else Stross had out in paperback.

I first read the Amber series at the public library (maybe Mr. Burt would like to go after them too?), but downloaded a copy to reread before I went and bought a copy. I've since bought it 1.5 times -- the Corwin books individually and then the omnibus.

I downloaded "Doorways in the Sand" because I'd enjoyed it in the library and couldn't find it in stores. I've since found a used copy. I'd have bought a new copy, only it's out of print.

I downloaded "The Books of Magic", which I haven't bought yet, largely because I have a weird thing about ordering online sometimes, and I never have enough spare cash when I find it in a store. But reading it was enough to get me into the theatres to see Stardust, if that's worth anything.

I downloaded "Global Frequency", which I also haven't bought yet, only because I just now thought to check if it was out in graphic novel form. So it's on my "buy this week" list, and also it got me to buy Transmetropolitan, all ten volumes of it.

In summary, Mr. Burt probably doesn't want me to stop downloading, if he's got the best interests of his constituency at heart, anyway.

The only term I can think of to describe this is stunning.

That's the slaughterhouse sense of the term.

53 Paula, you're mixing up two different amendments to the Copyright Act passed in 1998. Sonny Bono was responsible for the Sonny Bono Copyright Term Extension Act of 1998; that was a technical correction to the Copyright Act (we had signed a treaty, remember?) to change the baseline term from life plus 50 to life plus 70. Actually, you can blame the French for that... but that's a long story itself.

The DMCA is an entirely separate piece of legislation, in response to a different treaty obligation — the 1996 WIPO treaty. It includes two distinct amendments to the Copyright Act: Chapter 12, the evil and inexcusable "no DRM workarounds allowed" material (which probably violates the Constitution, but that's a complicated argument for another time), and — 512, the limitation-on-liability-for-ISPs material, which has some of the worst writing and thinking behind it in the entire Copyright Act (against some pretty stiff competition), even if its intent — to facilitate open exchange of information on the Internet while providing a way for copyright holders to notify ISPs of infringements — is a reasonable attempt to balance a whole bunch of competing interests.

General comment on Cory's comments at BoingBoing: Cory is not a lawyer. Much of what he says or implies about potential legal consequences is wrong, and IMNSHO constitutes indefensible rumormongering and attempts to refight long-ago-lost policy battles... but does not create a cause of action for anyone. I am explicitly not making any comments concerning anything other than legal consequences. I am representing other persons (note the plural) regarding scribd.com, and for that reason I won't be posting at boingboing.

And none of the above is legal advice for any particular situation. I do not represent SFWA, scribd.com, or Cory Doctorow.

Jules @ 26: Re: #19: I agree that putting responsibility on the user is a good thing, and it might even get good-faith users to take a look at their uploads. However, I very much doubt that the "e-pirates" would stop uploading rather than "answer falsely". It strikes me as a bit like assuming that real pirates, after having robbed and burnt their way through several merchant ships, would be put off burying their treasure on a particular deserted island because of the "No Trespassing" sign.

Of course, that's pretty much the approach the industry counts on for technological solutions, too. Neatly summarized:
http://ansuz.sooke.bc.ca/bonobo-conspiracy/?i=19

James Macdonald @ #82: The two notices sent to scribd are here and here.

The draft statement was written later and not made public, as described by Charles Stross in #78.

Jonquil @ #79. Shouldn't be too long. It's already up at Ars Technica.

Actually, you can blame the French for that... but that's a long story itself.

I thought Germany had the longest copyright term, and most european countries bumped their terms up in the 90's to keep up with Germany. And then the CTEA was argued to be America's bump to keep up with europe.

Am I going to have to start eating Freedom Fries again? Oh, never mind. I'm on a diet anyway. I can't touch fries of any kind.

C.E. Petit @88:

A statement along the lines of, "Everything Cory and his commenters say is wrong and misguided, but I can't, legally, tell you why," strikes me as not contributing anything particularly helpful here.

If he's that misguided, surely someone out there can contribute an actual analysis of the flaws in his arguments.

(I'm not challenging your statement that you can't comment further, just suggesting that commenting at all without being able to elaborate provides us with little of actual value here).

Clifton@89, nice. I perused the comics and found this one too. In light of our recent wikipedia discussions, I'll just say:

bwhahahahaha!

How ironic that Andrew Burt should do this.

Andrew Burt was responsible for the first real unfettered access I had to USENET, back in the days when my telnet access was through a CP/CMS machine, and so telnet into Nyx was all cluttered with ANSI codes and improper scrolling yet still readable. aburt's Nyx site was where I originally went to read the newsgroup rec.arts.anime that a friend had told me about, and where I was then inducted into online writing circles where we wrote our tales and shared our stories freely on the Internet. Though defunct now, alt.pub.dragons-inn and alt.pub.havens-rest were really jumping back in the day.

And Burt was also a more direct champion of writing circles, too, in his work with Critters. According to the article, he believed that espousing some of the principles of the Open Source movement in writing would lead to more and better writers.

And now look what he's doing. What a shame that it should come to this.

C. E. Petit @ 88: There was no treaty obligation requiring us to extend our copyright terms from life+50 (which *is* a treaty obligation of the Berne Convention) to life+70. We extended it to "harmonize" with Europe, which in turn had extended in most countries to "harmonize" with Germany and Austria (as Greg pointed out.) That extension actually increased some terms to longer lengths than Europe's (since we basically just added 20 years to nearly all existing terms), and guess what-- there's now pressure in Europe in some quarters for them to extend those we as ll to "harmonize" with us....

*After* the Copyright Term Extension Act was passed, the US did make some bilateral treaties with some other countries (such as Australia) to make them increase their terms too, and lock in our own term extensions. So we do have some treaty obligations now for life+70, but we didn't at the time the law was passed.

#21 Dave Kuzminski
"...but it was briefly blocked because of a DMCA demand sent to our host by BayTSP, Inc. which represented the manufacturer of the product..."

BayTSP has a long record of messing up DMCA alerts for video content, as well.

#44 John Scalzi
"The irony is that today is the last day to get SFWA dues in, and I have to decide whether I want to bother. This isn't helping any."

If I were a conspiracy theory nut, I'd be highly suspicious of the timing on this (ooh, more ways to make the new up and coming writers angry, and leave SFWA!).
Good thing I'm not.

#50 ::: Bruce Cohen
"Has anyone ever treated an invalid takedown notice as attempted extortion?"

http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000875----000-.html
Check out section (d). I'm just waiting for someone to use that wrt a DMCA, especially the heinous pre-litigation letters the RIAA sent out to college students.

#58 - Actually, I suspect my 1970s paper copy of Lud-in-the-Mist could also be considered a pirated text, in that Hope Merrilees was apparently still alive at the time and Lin Carter didn't try too hard to track her down (at least according to Wikipedia and Michael Swanwick.)

Barely related to the meat of the issue here, I was reading the proposed implementation details for the upload form.

Andrew Burt describes the storage requirements for the information entered in the upload form as:

"trivial (one byte per file is all that would be needed to store which selections they check as a bitmap)"

OK. I know that "bitmap" is the wrong term, unless he's storing a screenshot of the form, which would come in rather heavier than one byte. Clearly he's talking about a one-byte value that encodes the options, probably in a mapping of which bits are on.

So what is it called really? My brain has gone blank, probably from an overdose of popcorn and pirated e-books.

#97 Karen Swanberg

#44 John Scalzi
"The irony is that today is the last day to get SFWA dues in, and I have to decide whether I want to bother. This isn't helping any."

If I were a conspiracy theory nut, I'd be highly suspicious of the timing on this (ooh, more ways to make the new up and coming writers angry, and leave SFWA!).
Good thing I'm not.

--------------------------------------------------

Curious, I've been reading this all morning and just now was looking up membership info on SFWA to compare it to Mystery Writers of America. I'm in MWA as an Affiliate member because I'm unpublished. That membership is open to "writers of crime/mystery/suspense fiction who are not yet professionally published, and others with an interest in the genre, including unpaid reviewers." http://www.mysterywriters.org/pages/join/index.htm

I haven't found a parallel membership for SFWA, so I'm wondering how much of stuff like this is fueled by a "if there are no sales there are no members and then no dues" train of thought.

I have no idea what exactly is going on here, and I honestly don't much care, but I'd like to correct and comment on a couple of details.

Michael Capobianco is a postman, not a lawyer. His wife Ann is a full-time writer, and also not a lawyer. No SFWA officers are lawyers at the moment.

Charlie Pettit is a lawyer, and if he says Cory Doctorow is wrong on a point of law, I'd tend to believe him.

When I resigned from SFWA my resignation letter was two sentences; not everyone feels it necessary to write a grandstanding letter when quitting in disgust.

I suspect this entire screw-up is Andrew Burt's doing, rather than SFWA's collectively. Not being a member, though, I can't be sure.

It strikes me that the SFWA's actions are a truly unprecedented rights-grab. Precisely the kind of rights-grab that copyright law exists to prevent.

I mean, really, they* are asserting the right to dictate how something is copied and they aren't the author. Somehow I don't think Charlie Stross would be too happy if someone sent Tor a C&D for publishing his next book "on his behalf". What happened is a fraudulent representation of ownership.

*I use "they" advisedly. Yeah, yeah, wossname sent the email, but if he's representing himself as the SFWA, then it's the SFWA's mess to clean up.

As far as I can tell to this point, there's still too much dust in the air to discern the exact nature of the explosion.

It's clear that Andrew Burt -- acting in his role as SFWA Vice President and ePiracy Committee chair -- and Scribd were in communication with each other. Now, there are SFWA members who've granted permission for its ePiracy Committee to act on their behalf with respect to unauthorized electronic distribution of their work, so in and of itself this shouldn't be cause for alarm.

It's clear the list of works arising from the communications between Andrew Burt and Scribd was broader than it should have been as far as any sort of copyright enforcement was concerned. That's certainly a problem.

However:

As the discussion here indicates (including but not limited to C. E. Petit's #58), there's a lot of room for questioning whether either Scribd or Burt (and, by extension, SFWA) acted consistently with DMCA procedure in formulating the list and/or taking down works thereon.

There appears to be room to chastise Burt/SFWA for delivering a procedurally faulty DMCA notice. But it seems to me that if one buys this line of logic, one must also chastise Scribd for accepting and acting on the faulty notice as if it were legitimate.

There is more clearly room to chastise Burt/SFWA for generating an inappropriately broad list of improperly posted works. Again, though: one must also blink at Scribd's blithe acceptance of that list -- especially in the context of the procedural DMCA objections raised above -- and its failure to vet the challenged works before actually taking them down.

The remaining question is the degree to which Andrew Burt's actions reflect (a) the informed will of SFWA's officers/Board, or (b) his own initiative in attempting to carry out the stated mission of the ePiracy Committee he chairs. Which of these is a more accurate formulation isn't yet clear (my strong personal suspicion leans toward (b), but that's as yet unsupported by direct evidence).

So while the present brouhaha doesn't make SFWA look good, it seems to me that there are any number of shoes potentially undropped as yet, and that there is a lot of room to point Arrows of Stupidity[tm] in any number of directions, by no means all of which lead to SFWA's doorstep.

abi at #99: So what is it called really?

He means bitmask.

Oh, one more nitpick: SFWA. Not "the SFWA." Damon Knight, who founded it, got very cranky about that -- it doesn't take the definite article any more than NASA dos.

Bitfield would also work.

I suspect this entire screw-up is Andrew Burt's doing, rather than SFWA's collectively.

Lawrence, this fiendish writer has many and much the same thoughts, and wishes to wrap wads of duct tape over said person's mouth. (And other parts of him.)

Alex Cohen @104:

Bitmask. Thank you. The term was not in its accustomed cubbyhole in my brain and it was itching.

TNH,
I have been a loyal SF reader (and purchaser) since 1982. I have never downloaded or otherwise acquired a pirated fiction of any kind. The closest I ever came was wanting to get ahold of digital copies of Barbara Hambly's works to do a full scale concordance of the nifty words. I never got around to it, assuming that it was a morally grey area. (Yes, yes, fair use and whatnot, but I didn't want to in some way support the sketchy net citizenry.)

Note to Bruce:

I didn't know that Scribd existed until today.

Thanks for the tip!*

*see also, "Streisand effect", word origin provided here.

It's not a bitmask - you would use a bitmask to get information out of the structure under discussion. While I see that "bit field" is a term used for this, I had never heard it until now - I would have called it a "bitmap" or a "bit vector." The usage of "bitmap" for this has probably fallen out of favor somewhat since the advent of the graphics bitmap, but I still see it used with some frequency.

John @ 103:

There appears to be room to chastise Burt/SFWA for delivering a procedurally faulty DMCA notice. But it seems to me that if one buys this line of logic, one must also chastise Scribd for accepting and acting on the faulty notice as if it were legitimate.

There is more clearly room to chastise Burt/SFWA for generating an inappropriately broad list of improperly posted works. Again, though: one must also blink at Scribd's blithe acceptance of that list -- especially in the context of the procedural DMCA objections raised above -- and its failure to vet the challenged works before actually taking them down.

Having been on the receiving end of this law, I must agree and disagree. Completely agree that if the "notice" did not conform with the DMCA law (including, for example, the sworn statement on penalty of perjury), all Scribd had to do was say, "Golly! Send us a proper DMCA notice, and we'll sure take stuff down! ... But not until then."

But, once they've received a proper notice, I disagree that Scribd should have vetted the material themselves. That's part of the whole point of the safe harbor provisions: to keep the service provider from having to decide, on a case-by-case basis, whether a particular work is infringing - a determination that is properly made by a court, once an actual suit for infringement has been brought. It increases workload and liability for the service provider if they have to try to judge whether each individual work infringes.

The DMCA specifies that, if a suit alleging infringement hasn't been filed within two weeks of the takedown notice, all the files can go back up. That's what happened in my case, and I'm sure it was much easier for my ISP to temporarily disable 600+ files, wait two weeks, and then re-enable them when no suit was brought, than it would have been for them to eyeball each one of those pages. That alone probably would have taken more than two weeks.

Lawrence, thanks for the clarification,

Adam, that's just lawyer talk. I am not a lawyer, I cannot give legal advice, but I still trust Cory's reaction to this bruhaha.

92 Greg, it's the French's fault because of terms they insisted on inserting into the Treaty of Rome... and into Germany's post-WW2 copyright law that they hadn't yet inserted into their own. (Actually, it's always the French's fault... but that might just be some Prussian ancestry speaking. ;-) )

93 Adam, I realize you were just shorthanding, but I sort of resent the overstatement. There's a specific reason I said "legal consequences." I get enough misguided attacks made on me as a result of people listening to what some of the more-radical IWTBF maroons said we were trying to do in Ellison v. Robertson, so I'd really appreciate it if people would attack me for what I said if they disagree.

The irony that this kind of shorthanding is part of what gets Cory in trouble in his screed should not go unmentioned, either. If y'all don't know the legal technicalities, limit yer comments to policy, ok? Please, in the name of not turning ML into a law review with duelling footnotes?

96 John, I should have been clearer. There were no treaty obligations at the time Bono first introduced such legislation (1994, IIRC), true; but there were by the time the SBCTEA was passed, including both bilateral treaties with several South American countries, technical amendments to NAFTA, and the 1996 WIPO treaty-monster (which, technically, is either four, five, or seven different treaties — even parts of WIPO's own website aren't consistent!).

In any event, I was attempting to provide enough context for someone to remember why the DMCA ain't Sonny's fault.

100 Kendra, SFWA has a similar affiliate-membership class, from which I believe MWA derived its own comparable, but slightly different, criteria.

The topic has made it to Ars Technica as well.

Worse than Vogon poetry: bogus DMCA takedowns stun sci-fi lovers

It includes a very entertaining adjective for Cory:
"blogger/author/professional-loather-of-DRM Cory Doctorow"

C.E. Petit @ 113:

No insult was meant, and I truly didn't (and don't) doubt what you said about the legal consequences; I don't disagree with you about anything because (as you note), you're only commenting on the legal situation (not the "Burt's making SFWA look bad" stuff), and you're not in a position to talk about the legal specifics. I just find myself frustrated (as a non-lawyer) at being told that there's a counterargument, but not knowing the details.

#113 C.E. Petit

100 Kendra, SFWA has a similar affiliate-membership class, from which I believe MWA derived its own comparable, but slightly different, criteria.
---------------------------------------

Which means they are different, right? I looked over the Affiliate-membership class for SFWA and from the way I understood it I had to be employed by something to do with writing or science fiction or something that discusses both like academia or reviews and get active members to vouch for me. I'm guessing that's to keep the crazy stalking fans out.

But I don't qualify under those conditions. My paying job is state civil service--nothing science fiction or fantasy about that one. I have no sales to qualify for active membership. I don't know any SFWA active memebers personally.

I didn't see a membership that allows for learning writers to join and participate the way MWA does. I'm not saying one is better than the other, but my impression from the last "technopeasant" bruhah, these things come up with a tinge of "reading words for free! EVIL! Must be stopped!" That makes me feel that the fear of the money will dry up is fueling a lot of these bonehead moves.

Course now when I go home, I'll be delving into MWA member forums and see if anything has come up about e-publishing and Creative Commons and giving words away to drive up sales in the mystery genre. Just for comparison sake, and hoping that we learn from mistakes that have been made by other genres.

I don't know how appropriate it is for me to comment, given that I'm neither an author nor a user of downloadable-text sites. However, it does appear to me that, given:

1) Mr. Burt seems to have turned into a one-trick pony;
2) His one trick is both antithetical to the stated positions of many members of the organization he represents and is producing tons of negative PR for said organization;
3) He is demonstrably incompetent even at the promotion of his one trick;

...is it not time to seriously consider removal of Mr. Burt from his position, before he can do any further damage?

ARTICLE VIII
Removal of Officers

Section 1. Any officer other than the President shall be required to resign if the President calls for the officer's resignation and two-thirds of the officers other than the officer concerned so vote. In such event, the President will appoint a replacement for the remainder of the resigned officer's term.

Section 2. The President shall be required to resign if two-thirds of the voting officers so vote, the President and Vice-President abstaining. In such event, the office of the President shall be filled by special election, unless such vacancy occurs within five months preceding a regular election, in which case the Vice-President shall perform the duties of the President until the next regular election.

Section 3. An officer so removed shall be reinstated if, within the time remaining on his or her term of office, he or she presents to the President or Secretary a petition for his or her reinstatement signed by two-thirds of the active membership. The responsibility for circulating the petition shall lie entirely with the removed officer. Publication of the petition within the Forum may not be denied.

Section 4. The President shall be required to resign without appeal if two-thirds of the active membership signs a petition to that effect. Publication of the petition within the Forum may not be denied.

CEP@113: Thanks. I knew of bilateral Americas copyright treaties, but I didn't think any of them that specified life+70 had actually been ratified by all concerned by the time the CTEA passed in 1998. But you undoubtedly know more about the details than I do.

I'm most interested in learning where and when a general life+70 requirement got into the WIPO treaties, if that's indeed occurred. (I wasn't aware of one before, and if there is such an obligation, this is a matter of grave concern since it would effectively force an extension for nearly all the Berne Convention countries that are still at life+50.)

#79: It's just hit Slashdot (@3:21 PM eastern time):

http://yro.slashdot.org/yro/07/08/31/1821205.shtml

John@119: I'm most interested in learning where and when a general life+70 requirement got into the WIPO treaties

I have a timeline of copyright term/duration related events here. If it is correct, look at items in 1993 and 1998.

Oh, wait, I think WIPO has a minimum requirement of Life+50 for copyright terms of its member nations. But that is a minimum. You can have longer terms and still be a member of WIPO. you just can't go shorter than Life+50.

the events in 1993 and 1998 in that timeline, I believe, show who and when various members went above the minimum.

SFWA appears to be failing the second test in situations like these, which is that you need to get out in front of the problem, not play catch up. The story is now up on slashdot. A statement should have been issues by now, even if it is just "We're sorry, we're working to fix the problem and will issue a more comprehensive statement later". If SFWA doesn't want to be a rickety fly by night operation it needs to step up and stop acting like one.

Somebody is asleep at the wheel and needs to put out a freakin' statement already.

Nnote that being completely out of their depth in a situation like this is one reason why SFWA should probably have elected some people who actually still, you know, write novels and short stories and keep up with the latest issues involved in writing instead of one guy who I suspect only qualified for SFWA membership through marginal-at-best means and another who clearly doesn't have a clue about modern technology.

While on the subject of copyright terms and CTEA, I'll just note that not only did SFWA support the CTEA, they opposed Lawrence Lessig and his lawsuit Kahle vs. Ashcroft to get the CTEA overturned.

Okay. As an aspiring writer and potential SFWA member, who's spoken positively about the organization in the past to outsiders(for the monitoring of bad agents and subsidy publishers, as well as contract stuff), I'm, like--ticked. Majorly, royally, miffed, ticked off, p*ssed off, angry, snarly, growly--uh, well, you get the idea?

This is stupid.

It also inspires the following reactions in me as a semi-occasional politico--

a.) do I ever really want to pay dues money to this organization so that people like Andrew Burt can play these games, should I be in a position to qualify for membership?

b.) what does it take to initiate a Serious Recall of this person?

c.) I wanna epublish as well as hustle my rear to get my work into print, so that I have a stake in kicking the rear of people like this who want to play foolish big-fish-in-a-small-pond games.

I don't see any legal liability.

A DMCA takedown notice requires a statement under penalty of perjury. That statement would have been false in Burt's case, had it been made. It wasn't made.

There is nothing illegal about falsely claiming that a random message is a DMCA takedown notice. Proof: Message #137 on this list is a DMCA takedown notice.

Does anybody know some magic phrases that provoke bogus DMCA takedown notices? I want to post them on my website, so I can embarrass whoever is sending those notices.

C.E. Petit #113: Bleargh. Ellison v. Robertson?! I wouldn't hold that up as a paragon of jurisprudiburble virtue. Suing deep pockets AOL because USENET couldn't be sued itself. Bleargh.

Oops, I guess this means I'm a maroon. heh.

James D. Macdonald @#69:

While one should not attribute to malice anything that is adequately explained by stupidity, any sufficiently advanced stupidity is indistinguishable from malice.

Bwa! That's going in my quotes sidebar.

Mr. Burt has accomplished two things today: He has embarrassed SFWA and he's brought the Scribd.com website to the attention of many, many causal internet users like me.

Heh.

I'm glad there's someone causal here. It gives the joint some class. Usually we have to settle for correlation.

128 You've just made my point, because that's almost exactly what we were accused of doing... and it's not at all what we did, nor what we intended to accomplish. The biggest problem with the more-radical fringe of IWTBF is that it's not nuanced enough to understand the difference between "information" and "expression."

And I'm not saying you're a maroon, or agreeing with every aspect of any of the opinions in Ellison v Robertson; I'm pointing out that the assumption "Ellison wants to shut down Usenet!" is both common and wrong.

126 (joyce) b.) what does it take to initiate a Serious Recall of this person?

see 118 (section 1)

Teresa at #131:

Teresa, my dear, you are made of win.

Here I am, casually (and, maybe, causally) refreshing the thread while working on the deck (first really, really nice, not-too-hot day in a bit), and now my neighbors must all think I'm nuts for all of the laughing out loud. That's my favorite joke of the day.

And, since I'm currently reviewing expert depositions in an antitrust case where the experts all purport to be economists, "favorite joke" is saying a LOT. And some of the deponents are having a hard time distinguishing btn causation and correlation, so the joke has resonance in real time. How's that for timely?

I can't help but wonder how much of the SFWA's position on e-piracy in its many, genre-killing forms is just jealousy. Cory Doctorow and John Scalzi have shown that giving writing away helps sell books...their writing, anyway; their books.

It seems like the guys hating the hardest on piracy are not the most likely to actually be pirated. Andrew Burt only has one novel available to buy, from the looks of it, and it's about Y2K, and has a look to it that suggests self-publishing, even if it's really not. Is e-piracy actually cutting into his sales? Is it telling that his attention-getting sig quote about e-piracy is someone else's writing?

re #127, if this shows up as #137:

This is a DMCA takedown notice:

Stop whatever you're doing. Twist both hands behind your back and handcuff yourself. Then put a rubber chicken into a paper bag, wave it around your head, and sing "I'm A Little Teapot" as loud as you can.

This is not a DMCA takedown notice.

Ceci n'est pas une takedown notice.

This is a DMCA takedown notice, but only if you believe that it is not.

Dang, I missed it! You can put the rubber chickens away.

C.E. Petit #132: I'm pointing out that the assumption "Ellison wants to shut down Usenet!" is both common and wrong.

Well, of course you would say that, but no, my assumption was considerably more snarky and mean-spirited than that. I'll stop there, because I don't want to get sued.

By the by, I decided to renew my SFWA membership. Without going into great detail about it (because much of the reasoning behind it is buried in SFWA's private areas), one motivating factor is that I believe Michael Capobianco, SFWA's president, is trying to get ahead of the problem and do the right thing for the organization. It counts for something.

Joyce #126:

I don't usually just do a "What She Said," but I'll make an exception this once. Because I tried to write something like that a few hours ago and it came out all wrong. Yours, OTOH, said all the right things in the right order.

Mary Dell @ 135:

Well, the last time we saw an SFWA Veep make a public ass of himself (the infamous pixel-stained technopeasant kerfuffle), jealousy seemed a pretty clear motivating factor. It doesn't seem as likely here (Jim Macdonald's observation that it could well be highly advanced stupidity seems on the mark), but it might be an underlying motivator.

Adam Lipkin:

"Well, the last time we saw an SFWA Veep make a public ass of himself (the infamous pixel-stained technopeasant kerfuffle), jealousy seemed a pretty clear motivating factor. It doesn't seem as likely here (Jim Macdonald's observation that it could well be highly advanced stupidity seems on the mark), but it might be an underlying motivator."

I think Andrew Burt was genuinely trying to be useful and helpful. He's just bad at it.

abi @99:

"trivial (one byte per file is all that would be needed to store which selections they check as a bitmap)"

OK. I know that "bitmap" is the wrong term, unless he's storing a screenshot of the form, which would come in rather heavier than one byte. Clearly he's talking about a one-byte value that encodes the options, probably in a mapping of which bits are on.

So what is it called really?

Bitfield is the normal current expression for this, but prior to about 1980 it really would have been called a bitmap. There are a few structures like this that survive in modern Unix kernels that are called bitmaps, for instance the map of which sectors on a disk are free. The term got coopted a long time back to refer to uncompressed black and white image files (i.e., one bit for each pixel). It then got corrupted to refer to any image file, largely thanks to Microsoft. But some people still use it with the original meaning.

Note that Michael Capobianco, SFWA prez has released a statement.

I want to respond to the flurry of activity that has resulted from Science Fiction and Fantasy Writers of America (SFWA) mistakenly identifying several works as infringing copyright. First, some background. There have been discussions within SFWA for several months regarding websites that allow users to upload documents of all sorts for other users to download and share. Many hundreds of copyrighted texts have been put online at these sites, and the number is growing quickly. Some SFWA members complained about the pirating of their works to SFWA's e-Piracy Committee and authorized the committee to do something about it. SFWA contacted scribd.com, one of these sites, about removing these authors' works and generated a list of infringing works to be removed.

Unfortunately, this list was flawed and the results were not checked. At least three works tagged as copyright infringements were nothing of the sort. I have personally apologized to the writers and editors of those works. If you are a creator who has had material removed and has not yet been contacted, please email me at president@sfwa.org.

SFWA's intention was to remove from scribd.com only works copyrighted by SFWA members who had authorized SFWA to act on their behalf. This kind of error will not happen again.

Michael Capobianco

That's the formal, polished, hours-to-work-on-it version?

Megan@149:

Cut him some slack. The content is good, and he's apologized for an error and he's made assurances the same sort of screw-up won't happen again on his watch.

I didn't vote for Capo (indeed, I ran against him), but I appreciate that he quickly got out a response on behalf of SFWA, and that essentially it says all the right things.

IANAL, but I *am* a computer programmer. So at least there's part of this thread in my field of expertise!

Once you have a bitfield (or "bitstring", which is what I tend to use) representing the data, you use a bitmask to pull out the stuff you care about. For example, if you have a set of eight questions, the answers to which are encoded as eight bits left-to-right (say, "10111100"), you can apply a bitmask with the third bit set to 1 (i.e. "00100000") to pull out the third answer.

In this case, "applying" the bitmask means performing a bitwise AND on the two strings:

10111100 AND
00100000 =
00100000

Because the resulting bitstring is not 0, you can determine that the third bit is set, and the answer to the third question in this case was "yes".

This becomes more useful when you have questions like "Are* at least one of the answers to questions three, five, and seven correct?" - you can use the bitmask "00101010" to determine that. The resulting bitstring ("00101000") is non-zero, so at least one of the three questions was answered affirmatively.

---
* - "Is" is appropriate here, right? I can never remember how to conjugate verbs where the quantity of the subject is unknown.

(Bleh, I went back and revised myself, but not my footnote. So it goes.)

I'm glad there's someone causal here. It gives the joint some class. Usually we have to settle for correlation.

D'oh!

It's only, like, my mother tongue and stuff.

joann # 143--

*thank* you. I've been thinking about what I wrote, and I got so excited that I left off the part I ended up posting elsewhere about my dues priority definitely being my day job's professional specialist organization (Council for Exceptional Children--I'm a special ed teacher).

Michael # 148.

Okay. Here's the challenge to you. As a developing writer,I am a potential SFWA member. I am also a long-term reader and fan in the genre. As a developing writer, I've had a history of supporting and promoting SFWA due to the strong work it's done in the past to support and inform writers. Yeah, I've known that there are problems, but I've figured it's been the stuff typical to any organization of that sort.

Today's fiasco, however, is the absolute final straw for me when it comes to supporting SWFA. Don't tell me that all that good stuff in the past wipes out what happened today. This last little incident is pretty dang serious, as far as I'm concerned, and it reveals a mentality in SFWA that suggests that a major clue is lacking when it comes to any sort of non-paper publication.

That is *not* what I want from a writer's organization in this current electronic era. As an emerging writer who keeps on researching the current publishing trends (at least as much as I can with a demanding, full-time day job), I can't afford to affiliate with an organization that doesn't seem to understand the issues related to electronic rights, electronic publications, and alternative means of marketing, promoting, and developing a writing career via electronic means in addition to print. My potential market is one which is electronically savvy, and I'm gathering a sense that bloopers like today's just end up poisoning the well for anyone who is identified as a SFWA supporter.

So. Convince me why SFWA's still valuable given this circumstance. I don't want to hear about past laurels. I know about those, and I'm serious when I say that today's events (coupled with a bit of what's been going on this year already) are enough to make the scales even. What are you and others going to do to change this organization from a potential embarrassment to an asset, in the future?

John @ 150:

The content's good for the quick announcement when a problem emerges (either because SFWA noticed the problem internally or the news just hit, say, a couple of high-traffic sites). For that matter, the response at, say, phywriter.com is just dandy for a first salvo, sorry-we're-working-on-it response.

If this is supposed to be SFWA's "get ahead of the problem" response, it's mistimed. If this is supposed to be a comprehensive analysis and position statement, it's too slight.

Scalzi@150: While I agree that it's good that there's a response now, I also have to agree with the first comment in the LJ post about it, concerning the "this list was flawed and the results were not checked" bit:

Whenever I teach engineers to write, I say "The passive voice hides the agent, the person or thing that performs the action."

The list didn't just make itself, and it didn't just fail to check itself.

It's good that Capobianco recognizes that there was a problem, but the whole thing ends up coming off a bit like he's saying "Y'know, mistakes were made. These things happen. Won't happen again, we promise, so don't worry about it."

Nothing about "we're looking into how we made this mistake", or "we're looking into how to make sure we don't do this again".

It's all wrapped up a little too neatly for my tastes.

Whoops, two minutes too slow -- Megan@155 said what I wanted to say much more concisely.

I'm glad there's someone causal here. It gives the joint some class. Usually we have to settle for correlation.

It's causal Friday at Making Light.

Megan@155, Nat@156:

I would agree that it's a first step, rather than a final word. But it's a first step in the right direction.

If he's causal, can I be effectual?

If I ever get to go back to that thing I was writing about moderation, there'll need to be a section about dealing with internet PR disasters. A rudimentary notion of it:

(1.) Get out there and say something, fast. (2.) Acknowledge that there have been screwups. Avoid passive constructions. (3.) Explain what you're doing to help fix the problem. Be telling the truth when you do it. (4.) Give up all hope of sneaking anything past your listeners. You've screwed up, the internet is watching, and behind each and every one of those pairs of eyes is a person who knows how to Google. (5.) Corporate-speak will do you more harm than good. Instead, speak frankly about what's going on. React like a human being. Talk like one, too.

Adam Lipkin @#144, John Scalzi @#145:

It's not just this occasion that I'm talking about. I suppose it wasn't nice or necessary of me to single out Andrew Burt, but he's offended me both as a reader of fiction and as an admin of sys.*

The whole SFWA/E-piracy committee thing is what concerns me - SFWA has been positioning itself as the organization that Fights! Pirates! and believes in trillion-year copyrights and charging full price for every glass of lemonade. Meanwhile a small, very successful subset of its members are busily breaking down traditional notions about publishing and copyright, and getting laurels and cake and sales because of it. Probably the e-piracy folks have some legitimate concerns, but I still smell a sour grape.

* I think he grabbed all the files from the site, and then did "find -print |xargs grep -i asimov" and dumped the results into his takedown notice, which is equivalent to piping it straight into rm. Dumbass.

John #150: Cut him some slack.

Sorry to disagree. High profile public figures routinely have their statements dissected, analyzed, and criticized on ML*, so why should he get deferential treatment?

So, let the piling on commence:

At this juncture in the crisis, any kind of statement should have addressed: 1) the facts of the situation; 2) the intent of the initial actions, 3) the scope and impact of the unintended results; 4) clearly identified immediate corrective actions; and 5) a clearly identified set of objectives for resolving the issue.

While SFWA's statement certainly covers a few of those elements, it fails to adequately hit on a some of the more disturbing elements:

1) An explanation (and perhaps even apology) for the tone and tenor of SFWA's official communications to Scribd.

2) Acknowledgement of the lack of process, legal guidance, public relations management and other important aspects of any copyright protection actions.

3) Reassurances to the industry's authors, readers, and publishers that before any actions are undertaken in the future those elements outlined in #2 will be in place with adequate oversight by SFWA's membership and governing body.

---
* In much the same way small game animals are dissected, analyzed and criticized by wolves.

SFWA is as usual a beautiful example of SNAFU.

Sigh. I'm a member of SFWA's copyright committees, but I had nothing to do with SFWA's scribd.com situation. That said:

Would everyone involved in this debate please stop assuming that an organization that holds a single position on copyright with which you disagree automatically means both:
* That the organization holds the most-extreme version of that position, and
* That the organization therefore holds every other extreme position with which you disagree?

At the moment, I'm going to pick on post 162, which reads in part:
SFWA has been positioning itself as the organization that Fights! Pirates! and believes in trillion-year copyrights and charging full price for every glass of lemonade.
which grievously misrepresents SFWA's positions. SFWA support the CTEA (at a time I was not a member) solely for harmonization; there is actually a consensus within the committee that life+70 is too long, but there's not a lot that can be done... and trying to cut back is worse. I'm not entirely certain what the "full price for every glass of lemonade" is referring to, but SFWA has been working for quite some time to convince publishers that they're overpricing their stuff — especially e-books.

Keep in mind that SFWA's position on the "orphan copyrights" debate was probably the most reasonable of any of the parties who actually sat down at the roundtables, and was one of only four (out of hundreds) that explicitly tried to strike a balance between copyright holders and those who wish to reuse material. Try reading SFWA's position papers and seeing if it's fair to claim SFWA's position advocates trillion-year copyrights.* Hey, sometimes I even agree with EFF and Cory, or think they don't go far enough!

In short, please stick to criticizing someone for what they said, not what you think they said because you despise some aspect or implication of what you (quite probably) misheard.

* OK, admittedly, I wrote a good portion of SFWA's position papers, and I participated in one roundtable session on SFWA's behalf (Michael Capobianco did, too).

Lance Weber:

"High profile public figures routinely have their statements dissected, analyzed, and criticized on ML*, so why should he get deferential treatment?"

I think he should get some slack because I think he's come a fair distance on the issue in a single day, and because I think he did fundamentally the right thing, even if the details aren't to everyone's satisfaction.

Bear in mind that this is the fellow I ran against for SFWA President; I have no great personal love for him or the platform on which he ran. He's not a pal.

I think he should be cut some slack because he genuinely moved in the right direction on this one. If you'd prefer he'd move more in that direction, groovy -- I'm not saying uncritically accept what he's said as a final word. Dig in and raise objections.

But do understand that in my opinion - which should count for something in this particular case - Capo did the smart thing, and the right thing by apologizing, and by getting it out relatively quickly and by making it official. There's more to do, but this is a start, and I'm willing to give him credit for that.

Cory Doctorow gets back to brass tacks:
http://www.boingboing.net/2007/08/30/science-fiction-writ-1.html#comment-3256

I think the most important thing to note about the debate about whether or not this was a takedown notice is that:

SFWA members claim that Scriptd were a pack of recalcitrant heel-dragging pirates who were so uncooperative in responding to claims of infringement that they had to be targeted. However, if they are so all-fired legalistic and uncooperative, then why did they give SFWA the benefit of the doubt and treat the "informative note" as a DMCA notice (rather than adding the sender to a killfile and ignoring further correspondence from that address, which is probably what I would have done.).

As a personal aside, I dealt with Jason, Director of Community Development at Scribd when our publications went missing. He was friendly and responsive, and bumped my concern to Jared, the Scribd President. Jared was also very prompt communicating with me, and followed up with me on his own as we initially debated whether we should file the DMCA counter-notification. They were great guys to deal with, and have been forthcoming with me throughout this process.

Cory Doctorow cuts through the elements hidden by passive voice:
http://www.boingboing.net/2007/08/30/science-fiction-writ-1.html#comment-3288

Note that this statement does not promise that:

1. SFWA will check the list on its own to eliminate works that it erroneously identified, rather, it puts that burden on the authors/posters of the works that have been suppressed at SFWA's behest

2. SFWA is only interested in works that are "non-infringing," not works that it didn't have the right to enforce copyright on, for example, the Bruce Sterling text (Sterling has confirmed that SFWA is not his agent for copyright enforcement)

In a nutshell -- "We're sorry, if you do the legwork, we'll ask Scribd to put your stuff back, but we won't do anything ourselves. Also, we will continue to act as though we have the right to enforce any copyright we see being violated, regardless of whether we represent that copyright holder."

@148 Michael Capobianco:

I'm not an SFWA member, nor am I a lawyer. I do, however, have some experience of politics. My advice is this:

Burt must go

OK, that's the short version. The long version is something like this. Burt has made a colossal cock-up. As long as he retains his current responsibilities, neither your members nor the wider community will have any faith in the judgement of SFWA. There is also the political fact that, after a screw-up of this magnitude, the angry multitude will not be satisfied until a head has rolled. If it isn't Burt's, and soon, it will be yours in due course.

You may believe that you can weather this storm with a few well-worded blog postings. If so, you couldn't be more wrong. At the moment, the SF writing community is split into three parts:

1) Those who are abandoning SFWA

2) Those who remain with SFWA in order to carry out an internal revolution (and no, you won't be invited to retain your present position)

3) Those who haven't yet heard about this debacle.

The third group is shrinking by the hour.

This is a very serious situation for SFWA, and it demands substantive and decisive action. You will not last long in your leadership position if you fail to provide it.

I have no particular dog in this fight, except insofar as I am concerned about due process and transparency. I offer my advice for what it is: the only advice you are likely to get from an experienced politician. Do with it what you will.

TNH@161: Most of that is not new with the Internet, just more pressing.* There's an organization which could have used that counsel 20 years ago (along with advice about \never/ making big decisions at a single meeting) that has been hurting from the effects ever since.

* Isn't it strange how politicians never learn this lesson? Somebody screws up, hides it about as well as a cat covering up on linoleum, and is gone, and next week somebody else is trying the same stupid stunt? Do they all think they became Fruit Punch Czars(tm) because they can get away with things that would trip up ordinary humans?

C.E. Petit @#165: Point taken, and I bow to your authority in the matter of copyrights (as in many other matters).

However, I stand by my hyperbolic lemonade reference, which was inspired by Howard V. Hendrix, then-vice-president of SFWA, saying this a few months back:

"Webscabs claim they're just posting their books for free in an attempt to market and publicize them, but to my mind they're undercutting those of us who aren't giving it away for free and are trying to get publishers to pay a better wage for our hard work."

I believe we all recall the ensuing kerfuffle.

John #166: I think he should be cut some slack because he genuinely moved in the right direction on this one. If you'd prefer he'd move more in that direction, groovy -- I'm not saying uncritically accept what he's said as a final word. Dig in and raise objections.

This is pretty reasonable and a statement I can agree with. I interpreted your initial remarks as a request to drop the matter and move on; sorry for misunderstanding your intent.

Lance Weber@172:

"I interpreted your initial remarks as a request to drop the matter and move on; sorry for misunderstanding your intent."

No worries. That's the magic of the Internets: infinite room for clarification.

@170 Chip

Politicians may not learn the lesson, but political fixers certainly do. Watch this for a fictional, but very credible, demonstration.

#158 It's causal Friday at Making Light.

How own-timezone-centric of you! ;-)

I'm at GMT+12, while the first two names on the entry are at GMT+10(?). Although it was posted on Friday night their time.

Not as bad as one LJ post I saw about the lunar eclipse - something like "If you aren't on the West coast, you probably had to climb a hill out of town to see it". It was easy to spot where I am (in the middle of Auckland), as the moon was at 50deg or so.

Anyhow, please take this as a jokey chastisement, and not a serious complaint.
:-)

Granted that SFWA is indeed a small organization, about how many dues paying members does crap like this end up costing them? Is membership increasing? Decreasing? Have goals been met? What does The Iraq Study Group SFWA have for benchmarks?

As someone who has been published in Ray Gun Revival, this fills me with a certain amount of sorrow. Here I am, trying to play the writing game by working my way up through the smaller press ... and then this.

I realize this may have been in error, as explained in Mr. Capobianco's post, but it's still disheartening. Regardless of whom or what is at fault, SFWA is supposed to be an organization that protects writers. I'm not a member, and now I probably never will be.

C.E. Petit #165: I would like to know why something as serious as a DMCA takedown notice wasn't vetted by someone in SFWA who is competent to give legal advice (such as the SFWA Legal Counsel, for example)? I really think any such document should have been sent by the SFWA Legal Counsel. Or was the notice willfully malformed so that it would not actually qualify as a valid DMCA takedown notice?

One thing that bothers me about this initial response is that it recognizes only one of the things that was screwed up in this situation. It's certainly a big deal that the SFWA falsely claimed to represent the copyright holders of certain works and had those works taken down, but I think it's important not to forget that even if every work on the list was a violation of an Asimov copyright, Andrew Burt would have been doing a number of things wrong.

There's no reason the SFWA shouldn't work to get copyright violations of members who have asked for help taken down; however, DMCA notices should either be written by the SFWA's lawyer, or by someone who has been closely advised by a copyright lawyer on exactly what a DMCA notice should look like. When Andrew Burt claimed that his initial email "wasn't idle musing, but a DMCA notice," he was lying, and falsely claiming that a document has that kind of legal effect seems like a big deal to me. There's also his problematic suggestions on how Scribd could deter piracy; should they be interpreted as the official stance of the SFWA? If they aren't, why were they presented that way?

I'm not a member, so maybe my opinion doesn't matter, but what I would like to see is an acknowledgement by the SFWA that beyond the improper inclusions on the list, their entire approach to Scribd was handled incredibly improperly, a promise that in the future they will deal with copyright issues that they do have the authority to address in the proper legal manner, and some kind of statement on the organization's position related to Andrew Burt's requests of Scribd.

abi:
I still use the term "bitmap" as it was formerly used, ignoring subsequent corruptions of the language - in fact just last week I rewrote some Viterbi error-correction code to use multi-word bitmap operations for a rather credible speed-up. As Darth explained upthread, a bitmap holds the bits representing values, and a bitmask represents some subset of those bits and is used to set, clear, or extract them.

Andrew Burt is the same guy who does Critters, isn't he? It's a shame to see this mess, as I've always appreciated the service he provides by running Critters, whatever else he may do.

C.E.@165: SFWA support the CTEA solely for harmonization;

What does that even mean? The grandchildren of some German author were still raking in money from their long (SEVENTY years) dead grandfather, while the grandchildren of some American author stopped getting royalty checks FIFTY years after grandpa died, so the American kids were mad at the German kids?

That CTEA was the copyright equivalent of pulling the car over to the side of the road to stop the squabbling children in the back seat?

"Harmonization", as far as I can see, is a complete crock of sh!t. In 1831, Congress extended the term of Copyright to 28 years plus an additional 14 year extension, claiming it matched the protections provided to Authors in Europe.

If Harmonization were NOT a propaganda term for copyright maximalists, then copyrights would harmonize DOWN at least half as much as they harmonize UP. But, "harmonization" only goes up.

there is actually a consensus within the committee that life+70 is too long,

I haven't seen that position on any SFWA document. In fact, this letter to Lessig says: "SFWA does not concede the CTEA is flawed in a policy sense"

but there's not a lot that can be done...

Hogwash. Berne requires a minimum term of Life+50 years. Lobby that terms be shortened to Life+50.

and trying to cut back is worse.

When someone's great grandchildren are being far overpaid for the work their grandparent did, the only "worse" thing about stopping overpayment on that bill is that said great grandchildren stop getting money they didn't deserve.

Keep in mind that SFWA's position on the "orphan copyrights" debate was probably the most reasonable of any of the parties who actually sat down at the roundtables,

These parties who sat down at roundtables, they all represented copyright holders? At what point does it become a bad thing to have all the defense contractors get together and negotiate how much they'll charge the Pentagon for the next weapon system?

Was anyone representing the interests of the public as a whole? I believe Lessig was far more interested in what was right for the public in total, than what would maximize author income.

Copyright is a bounty, a reward offered for services rendered. And copyright holders have been pushing for more rights and longer terms ever since copyright existed. The thing is that for a bounty to be set at a level that is actually in the public's best interest, the reward should be set as low as possible but just high enough to get the job done.

No one can seriously and with a straitht face argue that any author needs copyright to last 70 years after they die to turn a profit on their work.

It's like saying you need a million dollars to bring in a guy who skipped court on traffic violations.

If competition were honestly engaged, you'd find plenty of people willing to do the same job for a lot less than Life+70 years. Instead, all the folks who have been getting Life+50 are sitting back on their legally protected monopolies and nodding in unison that Life+70 really is a fair price.

Of course they are. You're asking the bounty hunters to tell you if a million dollars reward is sufficient for catching the traffic court guy. What do you think they'll say other than "Yeah, it's a tough business, and harmonizing the rewards up and up is a good thing, and turning the rewards back down will be worse, and gosh we have it so hard sometimes we can't understand why we stay in business. We're practically doing you a favor."

The United States, from 1790 until 1978, had a copyright term of 56 years or less. And all those works written up until 1978, including some nobel and pullitzer prize winning literature, were all written by American authors willing to "make do" on a 56 year term. Nearly two centuries of books, movies, and music, should be sufficient to show that plenty of people would somehow find a way to "eek" out a living on a fixed 56 year copyright term. Which then means that all the folks willing to create works on a 56 year term would get a whole bucket full of works that would suddenly become public domain that they could play freely with. At which point, it becomes more and more apparent that were terms set to something like 56 years, that even if the folks that want Life+70 years actually stop writing in protest, the world might actually see more new works simply because 40 years of copyrighted works would suddenly become public domain and people could start playing with them for free.

And then the question becomes one of do we even need the authors who will only write for a Life+70 term? Could the world get by on the works of only authors willing to write for a 56 year term?

I think so.

And you say we can't go back from Life+70?

@169: There's a fourth group of SF/fantasy writers: Those of us who think SFWA is irrelevant, and the whole thing is a tempest in a teaspoon.

@182: Most writers I've talked to agree that life+70 is silly, and think life+25 or so would be about right. Talk to Congress, though, not to us -- it wasn't novelists who pushed through the present terms, it was record companies and movie studios.

Not as bad as one LJ post I saw about the lunar eclipse - something like "If you aren't on the West coast, you probably had to climb a hill out of town to see it". It was easy to spot where I am (in the middle of Auckland), as the moon was at 50deg or so.

Well, Auckland's on a western coast. Also on an eastern coast.

Christchurch is only on an eastern coast, and indeed my brother went out of town to see the eclipse, but I think that was just because of the clouds. (I didn't even stay up late because I have a low tolerance for lack of sleep and I've seen one before. The pictures looked nice.)

WRT #16, I had never even considered the possibiliy of Asimov/Silverberg slash before now. Damn you, internets!

Clifton Royston @ 180

As usual, I'm of two minds* on the issue of what a bitmap is. I started working in software down close to the machine level, writing assembly language, in the mid '70s. So bitmap means the same thing as bit vector to me. But, I spent the late '70s and most of the 80s working in computer graphics, so bitmap means a 2-dimensional array of pixel values as wll. Luckily, I rarely need to use both concepts simultaneously, or I might have to train one hemisphere of my brain to handle each one.

* No, my real name is not Gosseyn.

Teresa, #161: I fear that in this notoriously litigious society of the USA, a statement of the form you advocate would prompt sharp intakes of breath from counsel, and a chorus of legal interns declaring, "You can't say that!"

In three part harmony.

Earl, #178, I think that if this had been done properly, Burt and the committee he chairs would have gone through the procedures with counsel. This letter would not have used a phrase such as "this is a DMCA takedown notice" unless it met the formal requirements.

It looks like a botched attempt to deal with the matter short of invoking controversial legislation; asking nicely rather than applying the big stick.

But it's so thoroughly botched that we have the equivalent of somebody with a foam-rubber sword jumping out from behind a tree and shouting "Boo!" It would be understandable if Mr. Burt found himself nose-to-muzzle with the legal equivalent of a .44 Magnum revolver.

Unfortunately, this list was flawed and the results were not checked.

All you writer types may be wondering how this fiasco affects the market for your work. As a tester, I have to say that I see no probability of starving in the near future.

I've done exactly what FungiFromYuggoth @ 58 and abi @ 64 have done (with the exact same books as Fungi, no less.) The only difference is that I don't really use it for re-reading sections so much as locating specific references. I find screen-reading suitable for blog comments and entirely unsuitable for fiction longer than a short story, and believe one of the best points of books is that you can stow them in your pockets and pull them out while waiting for, or riding, the transport conveyance of your choice.

Judging by the number of paperbacks that sell in airports, I'm pretty sure this is a perk (or a read/no read point) for lots of people, and that's always kind of informed my thoughts on e-piracy foofahrahs.

Oh, and on copyright term, I'd say life + 15ish would be just fine -- even if you participated in the making of sproggets right before you knocked off, if your writing is bringing in good money, they get to grow up on it. Anything beyond that is, I think, silly. But then, I'd also like to see copyright models not based on property ownership; ones in which derivative work is not equated with the original, for instance, and there are various points of increased availability that the work hits before it reaches full public domain.

--

Teresa @ 161:

As a once and future customer service type (finally employed once more, am rapidly regaining my familiarity with the way upset people work) I couldn't agree more with step 1 of your cleanup recipe. And step 5.

Really broadly applicable.

Honestly. Even if all one can think of to say is "Oh, crap! I screwed the pooch, please hold while I knock the two conscious brain cells of the day together and see what noise they make," it still puts a human face on the situation and starts to calm people down -- because they've all had days like that.

It's not that no one will blame you when you do a thing like this, but those who will are blaming because that's what they want to do, not because they're just alarmed and directionless and see you as a faceless antagonist, or worse, a conspirator in some horrible plan.

#179: Yes, I was disappointed that Mr. Capobianco's LJ statement didn't even acknowledge that SFWA's (or maybe it's just Andrew Burt's) suggestions to scribd about reducing piracy. His initial comment at phywriter.com did though. I commented on his LJ statement (using my LJ nom de plume) asking him for more information about this last night.

#181: Yes, AFAIK, it's the same Andrew Burt. (In his Critters Workshop note dated 3/7/2007, he writes: "Hi, all, note to all you voting SFWAns out there to encourage you to send
in your ballots. I'm running for VP and would appreciate your support.") I'm disappointed too.

Perhaps we should revive the major debate over whether there will be an officieal SFWA necktie to distract them from this kind of lunacy.

Is there a central list of writers of works SWFA claimed to be defending? (There are actually rights issues with the way Amazon administers the Search Inside this book program as pertains to anthologies. I don't imagine that they addressed that.)

185: Actually there was an A/S slash story of sorts published ages ago. In the story, the two authors get into a competition to see who can write more material. Both use a long sheet of paper (rather like L. Ron was supposed to have used) and when the sheets encounter each other, they form a long DNA chain and consume the world.

Re: James 194

I remember that story, it was in an anthology of short short stories that Asimov himself edited. It was pretty funny.

I wouldn't quite consider it slash, though.

Let's back up a bit on the whole bitmap topic. I've been bitten in the butt before on designs like this, especially when I've taken the bit in my mouth and run with it. Maybe that's made me a little bitter, even bitchy, but better type safe than xor-ry I always say.

James Nicoll: "Half-Baked Publisher's Delight" by Jeffrey S. Hudson and Isaac Asimov. (Jim Baen thought that the ending of Hudson's original story was a bit weak and asked Asimov to come up with an alternate ending; the result was published as a collaboration.) It's in _100 Great Science Fiction Short Short Stories_, ed. by Asimov, Greenberg, and Olander.

Lawrence@183: Most writers I've talked to agree that life+70 is silly, and think life+25 or so would be about right. Talk to Congress, though, not to us -- it wasn't novelists who pushed through the present terms, it was record companies and movie studios.

Lawrence, I think it would be a huge step in helping fix copyright law if professional writers committed to shorter terms in some public and organized way.

It would have been nice if SFWA had taken the stand against CTEA and proposed shorter terms. But since that probably won't happen, some other venue is needed.

When the copyright maximalists argue for yet another extension to copyright terms, they will, at some point argue that they're protecting the little guys. If the little guys actually had a public statement that said, no, you're not, that could make a significant difference.

Do you and your writer friends belong to any other writer-type organizations? Or, maybe if some organization like Creative Commons had a petition for copyright terms of Life+20, would you and your friends sign it?

Teresa @ #29: I have read SF as pirated e-text. Not the first time for any work, and not any work that I don't own multiple normally-published paper copies of, but I have used pirated e-texts as an alternative to making my own scans and OCR for my own use (a clearly-legal format conversion; my shortcut, not so clear at all). It's tremendously convenient to be able to grep the text of a book you're arguing about, trying to write about, etc.

I propose that, for our own safety, we start referring to the two authors that were the purported subjects of the takedown notices as "He Who Must Not Be Named" and "You Know Who".

And SFWA as "The Ministry of Science Fiction".

Steve Brust has a prediction for the fate of SFWA

#200 - As a color purple or purple for short has a prior claim and a broader recognition - and hides better in a complex of assorted literary works.

SFWA’s behavior is evidently as odious as you could possibly imagine Well no, I can imagine SWFWA supporting Steve Stirling in his preferred behavior in the event of assumed piracy - enforced buggery - and that also leads to some rather astounding possibilities for slash.

All organizations founded by Damon Knight aspire to the condition of the N3F.

#202:
*cough* ITYM "As a color, purple-gray". And along the same lines, I suppose you could construct "precious shiny-gray metal city."

Also I should note it took me several readings of your second paragraph to make it clear that you weren't attempting to describe what SMS would himself prefer in the event of being, err, boarded by pirates. (I'll just have the rum, thanks!) Not to mention some unclarity about that supporting position of the SFWA. Now I really need that rum.

abi @ 189

You're not likely to starve in the far future either, as the saying goes: "Bugs we have with us always." Or should I say, "The poor software we have with us always"?

Kathryn Cramer @ 192

And will there an official SFWA necktie party at which they will be presented to the officers of the organization?

Teresa @ 29: Have you heard of anyone reading SF and fantasy as pirated e-text?

Depends. Does "greping for references" count as reading?

James Nicholl has posted a link to Jerry Pournelle's opinion on all this.

While I don't agree with Jerry, I think his posting crystalizes the difference between how SFWA sees this problem and how Cory and many of the rest of this see this problem. SFWA only sees this as a piracy problem, and they need to respond vigorously (even though, when you get right down to it, it isn't their problem). Cory and many of the rest of us see this as a group imposing their version of what piracy is...when their help has not been requested.

Laurie, SFWA does not see this through Jerry Pournelle tinted lenses. SFWA is not the Borg. SFWA is a herd of felines, and while Jerry is representatative of a certain tendency, the dissidents (such as myself, John Scalzi, Nick Mamatas, and Eric Flint) are giving at least as good as we're getting.

There is stuff I don't want to say on a public (searchable) forum, but I think we may see a major SFWA policy shift (or possibly a schism) in the near future.

My one fear is: if having an organization to represent the interests of writers is a Good Thing, then fracturing it would be a Bad Thing. SFWA has little enough clout as it is; if it fissions into two or more squabbling factions, none of them will retain even what little influence the parent body once had.

#209: It reads to me like Jerry is espousing the "I'd rather see the death of innocents than let one guilty man go free" point of view. That is, he sees piracy as such a potentially huge problem, that he is ready for drastic measures. While I don't agree with this position, I think is probably possible to make a reasoned and rational argument for it.

It's unfortunate, then, that he blows it in more than a few ways:

1. He plays the "SFWA didn't actually make a DMCA takedown request since they don't have the legal right to do this" card.

2. He plays for sympathy by explaining that scrubbing the list is tedious work and SFWA had only one volunteer to do this. (I fail to see how this is, at all, relevant. If the death of innocents isn't important, then neither is scrubbing the list He shouldn't feel the sloppy list needs defense. If it is important, then they shouldn't have submitted the list until they had scrubbed it well.)

3. He uses the "fear, uncertainty, and doubt" argument, rather than argue with any sort of data.

4. He writes a last paragraph which is a model example of why authors should not respond to their critics. It is an implied insult to everyone who does not agree with him.

In any case, if he doesn't want his work distributed on scribd, he's perfectly free to have his agent issue scribd a DMCA takedown notice for his works. That's his right. However, all anyone has been saying, in this specific case, is that people shouldn't be telling scribd to take down works for which they are not the copyright agent.

I think it's an indication of how wide the rift that Jerry Pournelle doesn't ever admit to even the existence of this position. (In fact, he dismisses whether SFWA had copyright agency or not as being unimportant.)

Oops, I meant to reply to #208. #209 hadn't existed when I wrote my reply...

Charlie, I should have said "Andrew Burt, acting in the name of SFWA" rather than purely "SFWA." I've watched SFWA for years, and I understand there are often huge differences of opinions among the members. Very imprecise language on my part. Sorry.

JC, I usually stop reading Jerry's screeds after about 10 paragraphs, so I missed some of that.

Jerry Pournelle's position is not SFWA's, and probably represents only the cranky unreasonable dinosaurs. Or, at least, the cranky and unreasonable... some of whom are probably young.

I'm really, really getting sick of the "if you're not with me on every nuance, you're an extremist on the wrong side of everything I believe" rhetoric on this topic. Bluntly, Cory's rhetoric harms his position, and it's no better when transported here. There's plenty of room for disagreement on what policy should be, or whether someone's take on policy is reasonable. There's much less room for disagreement on what the law is. And, since nobody has yet come up with (a) a correct, complete factual statement regarding the errors and correct statements in the notice sent to scribd.com, (b) the complete context in question, or (c) any reference to how a comparable combination of a and b has been treated in the past by both policymakers and the courts, may I respectfully suggest that y'all:
(1) stop tarring organizations and persons with misstatements or out-of-context statements of their positions, and
(2) stop asserting that SFWA has a single opinion on anything, including its continued existence?

I'm not at all sorry if this sounds condescending. Maybe that will get your attention before you tar me with the brush that I believe exactly as does Jerry Pournelle (on practically anything), since I'm also a SFWA member. So, too, is John Scalzi. If it doesn't, at least I've tried.

I see that someone "tested the theory" with a document on Scribd containing just author names. I took it a step further. I wrote an actual story containing the names, released it with a Creative Commons license, and put it up on Scribd.

From the promises I've seen in the followups, I doubt it'll be tested, but if it is, we'll see what happens. But it was certainly fun, and if nothing else, the incident inspired me to write, which wasn't in itself a bad thing.

Take a peek if you care to: http://www.scribd.com/doc/267210/Whats-In-A-Name

(And if you already saw me mention this on Boing Boing, sorry if you feel I'm being pesty.)

---Gwen

Let it leak.
It won't sink the ship.
ePiracy is one of the strongest and most proven forms of viral marketing available.
Some record labels are catching on...
Some authors and publishing companies may too.
"I swear it's just a digital archive man."

Posted by Jason Bentley to the ongoing discussion on BoingBoing:

Scribd's official response:

September 1, 2007

Dr. Andrew Burt
Vice-President
Science Fiction & Fantasy Writers of America, Inc.

Dear Dr. Burt:

I am an attorney with the Electronic Frontier Foundation (EFF). I write today as legal counsel representing Scribd.com. If SFWA is represented by counsel in connection with the matter discussed below, please let me know so that I may direct future correspondence accordingly.

On August 17, 2007, you sent an email to Scribd.com on behalf of SFWA alleging that numerous items hosted on Scribd.com allegedly infringed the copyrights of authors who you claimed to represent. On August 27, 2007, you confirmed in another email that your earlier communication was intended as a formal notice under the Digital Millennium Copyright Act (DMCA).

We have now heard from no fewer than four authors whose works were improperly targeted by your notice. They confirm that they have never authorized SFWA to act as their DMCA enforcement agent. As a result, it appears that your notice constituted a misrepresentation both of your authority to act on their behalf and that the targeted materials were infringing.

Scribd.com takes its copyright responsibilities seriously and complies in every particular with the requirements of the DMCA. Upon receipt of a compliant DMCA takedown notice, Scribd.com acts to promptly remove any materials uploaded by its users. But Scribd.com does not take lightly your apparently careless invocation of the DMCA to remove content without any valid justification.

I understand and appreciate that SFWA has taken steps to apologize to Scribd.com users whose materials were improperly removed as a result of your notice. This letter is intended to prevent any repetition of these unfortunate events. While we will continue to consider valid DMCA takedown notices sent on behalf of rightsholders who you are authorized to represent, this letter puts you on notice than any further takedown notices that contain misrepresentations may expose you and SFWA to liability (including attorneys fees) pursuant to 17 U.S.C. 512(f). This would include not only notices that misrepresent about your authority to act on behalf of rightsholders, but also any notices that target activities (such as the inclusion of small excerpts of copyrighted material within larger original works) that are plainly noninfringing fair uses. See Online Policy Group v. Diebold, Inc., 337 F.Supp.2d 1195, 1204 (N.D. Cal. 2004) (imposing liability for sending DMCA takedown notices targeting obvious fair uses).[1]

Moreover, none of your recent communications have been in compliance with the requirements of the DMCA. As you should know, the DMCA requires that a takedown notice be in writing and include each of the following pieces of information:

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

See 17 U.S.C. 512(c)(3)(A).

Your recent communications conspicuously fail to meet several of these requirements, including the lack of a statement under penalty of perjury that you are acting with the authority of the copyright owner and any identification of the work you allege is being infringed. In addition, the law requires that all of these elements must appear in a single communication, rather than spread across numerous email messages. See Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1113 (9th Cir. 2007).

You may wish to review the most recent ruling from the Ninth Circuit Court of Appeals on the DMCA, which presciently predicted the harm Scribd.com users appear to have suffered as a result of your noncompliant notices:

In order to substantially comply with 512(c)(3)s requirements, a notification must do more than identify infringing files. The DMCA requires a complainant to declare, under penalty of perjury, that he is authorized to represent the copyright holder, and that he has a good-faith belief that the use is infringing. This requirement is not superfluous. Accusations of alleged infringement have drastic consequences: A user could have content removed, or may have his access terminated entirely. If the content infringes, justice has been done. But if it does not, speech protected under the First Amendment could be removed. We therefore do not require a service provider to start potentially invasive proceedings if the complainant is unwilling to state under penalty of perjury that he is an authorized representative of the copyright owner, and that he has a good-faith belief that the material is unlicensed.

See Perfect 10, Inc. v. CCBill LLC, 488 F.3d at 1112 (emphasis added).

The law clearly entitles Scribd.com to ignore noncompliant DMCA notices entirely. See 17 U.S.C. 512(c)(3)(b)(ii). Consequently, by failing to meet the requirements of the statute, you run the risk that your notices will be rejected in their entirety (including any legitimate allegations of infringement that they may include), an outcome that would be unfortunate for the rightsholders SFWA represents.

We trust that, in light of this incident, any future DMCA notices sent by SFWA shall substantially comply with all the requirements set forth in the statute.

Sincerely,

Fred von Lohmann
Senior Intellectual Property Attorney
fred@eff.org
(415) 436-9333 x123

#214: I'm sorry. I should have made it clear that I took Jerry Pournelle's comments as representing Jerry Pournelle, not SFWA. However, I don't think I've misrepresented his views. As I read his comments, as long as the number of mistakes is below some number he deems trivial, he really doesn't seem to care if any documents are removed by mistake. His main concern is not with those documents removed in error, but to make sure all documents that ought to be removed are.

Patrick, I think that's an ePirated email!

...I want to buy Fred a beer.

I've read pirated e-texts of SF and fantasy. Quite a lot of them, actually.

It all started with a reading assignment - a number of classic novels, like Moorcock's Behold the Man and Simak's Waystation. The rest of the class was reading n-th generation photocopies of 80s-era translations; I pulled the English editions off of some textz server hosted in Russia, mostly because it would have taken me days to get through each of the translations.

I found lots of other books in that archive. Over the next few months I downloaded etextz of a couple dozen Dick novels (the following year they came out in translation), Le Guin, Bester, and a bunch of other writers, none of whom were in the uni library (the nat'l library downtown had some of them, but at the time I couldn't afford the deposit required to get a borrower's card).

But that was a few years ago. I don't do it any more - not for English books, at any rate (well, I did look up an English ebook of Old Man's War when that came out in Chinese to check which parts got bowdlerized). Vast quantities of Chinese fiction have such small print runs that after less than a year, practically the only copies available are online, although the increasing popularity of online auction houses have made used copies much easier to obtain.

I did get something for nothing - there's no way I would have purchased print editions of all the books I read online - but I definitely would have made good use of a local library, if I'd have had one available. And I'd seriously consider subscribing to a service that would give me access to online versions of books that I can't get in print. The way the world is connected these days, it's kind of silly that you still need to get your hands on a physical object in order to consume information.

I am currently in the middle of reading Gene Wolfe's (Tor-published) The Knight -- reading on dead-trees, a copy I legally bought, I should add. But this being Gene Wolfe, I keep wanting to flip back, and check things, thinking, "hey, didn't he mention this before...?" (I always swear he won't pull a fast one on me this time. Just like Lucy with the football, really.)

After reading this thread, it suddenly occurred to me: hey, a site with electronic copies of SF books! (I site, I should mention, I'd never heard of before.) Maybe The Knight is on there. I'd love to have a searchable copy handy as I read it.

No such luck. Thus ends my first try at finding an illegal electronic version of a text...

(PS: I have also used Amazon's search feature for this in the past, although it's a bit clumsy, and not all books have it. Still useful, though.)

HAWE PNH 216: I think Fred Lohmann is my new hero!

Why am I not surprised that Fred von Lohman made this incorrect comment (as quoted above)?

"The law clearly entitles Scribd.com to ignore noncompliant DMCA notices entirely. See 17 U.S.C. 512(c)(3)(b)(ii)."

Umm, no. Absolutely not. Try reading the statute:

17 U.S.C. § 512(c)(3)(B)(ii) In a case in which the notification that is provided to the service provider's designated agent fails to comply substantially with all the provisions of subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A), clause (i) of this subparagraph applies only if the service provider promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions of subparagraph (A).

Then try reading Napster, Aimster, Grokster, and half a dozen other opinions in which the various courts — including two of the judges who sat on that Perfect10 decision that they're so fond of at EFF, while ignoring the other two Perfect10 opinions. And while you're at it, try reading the next two paragraphs after the one in the 488 F.3d Perfect10 opinion cited in von Lohman's letter and see if it applies... because Perfect10 made no attempt whatsoever to identify specifically infringing material.

Then try reading the legislative history on what they meant by "substantially complies."

Bottom line: Only someone who was trying to rewrite the law to say what he/she wants it to say can interpret that in good faith as allowing an ISP to "ignore noncompliant DMCA notices
entirely."

"In my youth," said his father, "I took to the law,
And argued each case with my wife;
And the muscular strength, which it gave to my jaw,
Has lasted the rest of my life."

Patrick, are you actually doing things at the con other than sitting at your laptop? Have fun! Congratuations!

#224: I'm really tired, and read that as "sitting on your laptop."

I spent a few seconds trying to figure out what that meant before I . . .Nnnngh, really, I should just go to ZZZZzzzzz

#222: C.E. Petit - If you're going to take Fred to task on the basis of details, you might garner more respect if you start by getting his last name right. ;)

[/grammar cop - I'll stop baiting the lawyers now...]

Teresa @ 29: Have you heard of anyone reading SF and fantasy as pirated e-text?

Does it count if I got it from the author?

JKRichard #215: Some record labels are catching on...

Actually, some caught on last century; someone I knew (who ran a minor label) put his own stuff up, and got sales as a result.

Mr. Petit, it seems that we now have two lawyers with differing opinions of what the law means.

I shall assume that you and Mr. von Lohmann are equally qualified and experienced in this field of IP law.

We can't settle this argument: we're not judges. And since we're not paying for legal advice, we cannot rely on your professional liability insurance.

And perhaps the greatest offence against Making Light is to be tedious. Please think carefully about your further posting on the topic.

Personally, I think the members of the SFWA should take to heart the apparent uncertainty about the meaning of the law, take note of Mr. Burt's procedural recklessness, and get rid of him before the lawyers' bills start coming in.

It doesn't matter whether he was correct to take action: the way he has acted is open to challenge.

CE Petit @several

Like Dave Bell, I have no informed opinion of the law in this matter, which is of course your primary interest. You're no doubt preparing for arguments in front of a judge with much of this text.

However, although we mere readers, purchasers and (in some cases) writers of SF&F are not your primary audience, we too need to be persuaded of the value of your client's position. We choose whether to buy books, whether to download them, whether to join SFWA (if we qualify). Even if your clients are completely correct in every point of law, their financial interests may still be harmed by the wider perception of the affair.

Although some of the readers here already have their minds made up about the issues, not everyone does. And I've had long-held convictions changed by certain discussions on Making Light. Unfortunately, this is not one of them. You came in irate and got mad. It's the equivalent of hectoring the jury.

I'm surprised - your writing is usually very interesting and informative. And I have a lot of respect for you based on the things you do within the community. It pains me that you've come off this way this time.

Yes. As Abi notes, that something is legal doesn't make it either polite or productive. Unproductive: It would be entirely legal for me to put on my long underwear, warmest trousers, two sweaters, parka rated to -15 C, and gloves, and sit crosslegged on the nearest piece of lawn in the park with a book and a box of grapes. It would also be profoundly stupid, given current weather conditions. Even if I had a sensible political or legal point to make, and wanted to address my neighbors on that point, that would be the wrong way to do it.

Abi, unless I'm mistaken Mr. Petit does not represent SFWA.

C. E. Petit is suggesting two things: First, that EFF is being selective in how they quote and interpret the law in their PR efforts. Second, that Cory's rhetoric sometimes damages his cause.

Those are both reasonable propositions.

I don't find it at all odd that EFF is selective in how they present their arguments in public. They're speaking to an audience (not made up of lawyers) whom they'd like to convince to support their efforts. Why wouldn't they present the best PR case for supporting them? That's part of public advocacy. C. E. Petit is pointing out where their PR doesn't match his interpretation of the law.

What's the problem with that?

Further, when Cory is preaching to the choir, what gets them to sing is not necessarily what's going to make the rest of the population nod their heads, let alone give out a hearty "Amen!" There's value in getting the choir to sing, and people who automatically dismiss preaching to the choir should think about that, but it's still a sermon limited in its appeal.

I know a half dozen people who read a pirated e-copy of the last Harry Potter book. Every single one of them got the dead tree edition within days.

Jim at 232: See CE at 165. He might not represent SFWA, but he does seem to say that he's sitting on a relevant SFWAn committee. And when you get a lawyer who's a member of SFWAs copyright committee, replying to points made in a lawyer letter to SFWA, it's not unreasonable to assume that there's some sort of representation in place.

On the other hand, when the VP of SFWA tells you that he sent a DMCA takedown notice, it's not unreasonable to assume that he's speaking for SFWA, and sent a DMCA takedown notice, so I suppose it's best to avoid jumping to conclusions of this sort.

C.E. Petit (113):
Please, in the name of not turning ML into a law review with duelling footnotes?
I'm with you on not turning ML into a law review (with perhaps exceptions for the three laws, and Murphy's laws), but dueling footnotes* (with dueling banjos in the background) could be fun.

* My name is Inago Montoya, you murdered my father, I hit you across your face with my briefs**, and demand satisfaction! Prepare to die!
** or maybe this belongs in that other thread...

#236 I'm reading C.E.Petit's comments as more like "You keep mentioning the DMCA. I do not think that law means what you think it means."

I appreciate CEP's warning @ 222 that one might be legally obligated to investigate reports of copyright violation one one's site even if the reports are not fully compliant DMCA notices.

One thing I find a bit odd about a lot of the online discussions is that I've seen a lot of (justifiable) protest over the lack of due diligence on the part of Andrew Burt and the SWFA, but very little discussion of the due diligence required (legally or ethically) of those who host or promote copyrighted materials.

The obvious case study here would be what obligations Scribd might have when it's been informed, or has good reason to believe, that someone's been posting copyrighted materials without permission. Indeed, as someone points out in the Boing Boing thread, a simple search of "Asimov" in Scribd still quickly turns up a lot of material that most likely shouldn't be there.

Or consider cases with more active involvement. The same day that Boing Boing posted the note about SWFA's DMCA abuse, another Boing Boing article included a prominent link to a digitized copy of a book by the KLF: a copy that appears not to have been posted by the authors, and which has near the start the standard "All rights reserved", "no copy may be put in an electronic storage and retrieval system", etc. language, instead of any language implying permission to post.

Should the Boing Boing writer have checked to see whether this was an authorized online copy before including a link to it in their post? I won't venture a legal opinion here, but I think there is an ethical obligation here, particularly when it's something you write instead of something that gets posted without your intervention on your forum. And maybe they did check and it's cool with the authors, but I asked yesterday in the Bb comment thread if anyone knew if the authors okayed the online edition, and no one's responded that they had.

Two general points:

(1) I'm not representing SFWA. I'm representing others whose interests happen, in a general sense, to align with SFWA's: authors whose works are being egregiously infringed by a non-DMCA-compliant ISP (scribd). Thus, it may look like my comments are "supporting SFWA"; that they do so is not precisely coincidental, but a side effect.

(2) I don't like the way the DMCA was thought through, written, or in some senses interpreted. Basically, that's what you get for letting C students at Harvard who got their jobs as legislative aides and/or lobbyists through political connections write laws. In fact, as I wrote in our briefs on Ellison — and was essentially accepted by the court, and by many other courts since — the only way one can understand § 512 is by reading it from back to front.

Section 512 is not a clear statute with a clear meaning. However, it is possible — in fact, virtually mandatory — to say that some interpretations are wrong. The EFF's interpretation that a DMCA notice must comply perfectly to require any action at all on the part of the ISP is wrong and unsupported by any reading of authority in context... except the EFF's own policy writings and preferences. I don't claim to know the exact boundaries of what kind of notice is sufficient, but I'm really getting sick of the absolutist bovine byproduct.

"Glory" may not have a clear and exact meaning, but it does not mean "a good knock-down argument." Neither does "promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions of subparagraph (A)" have a clear and exact meaning, but it does not mean "[t]he law clearly entitles [an ISP] to ignore noncompliant DMCA notices entirely."

CE Petit @239
I stand corrected on detail, but maintain the central thrust of my comment.

You're heavily involved with SFWA, but in your annoyance you've missed a chance to make its case on a matter that is looking to cost it dear. And if your clients are aligned with its position, their interests would surely be served by the furtherance of the SFWA's cause in this matter?

IANAL, but going and reading the text of the law, CEP@239 certainly appears to be correct.

So my question would be "Is a purported DMCA takedown notice without 'the statement under penalty of purjury that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed' substantially compliant?

3 possibilities here:

1 - Yes it is, and there is an implied 'statement of accuracy under penalty of perjry'.
2 - Yes it is, and there is no such implied statement.
3 - No it isn't.

Only in circumstance 2 would the SFWA be in the clear. And I'd be surprised if the courts allowed such a hole, but the courts have surprised me before.

C. E. Petit @#213:

I'm not at all sorry if this sounds condescending. Maybe that will get your attention [...]

Ah, yes, NOW you have our attention, because up until this point everyone was ignoring you.

Two things:

1) C.E. Petit is the only person in this discussion who is actually a lawyer (there may be one or two others, but they're not being terribly active in the conversation).

2. HAWE PNH posted a formal letter from another real attorney, with which C.E. substantially disagreed. Personally when two attorneys say sharply discordant things about the same law, I wait and see what the judge says. This is because I am not a lawyer myself.

BONUS ITEM: C.E., even if we're disagreeing, and even if some or most of us are flat-out wrong and being really foolish because we think we know more about the law than we do—we're your friends. Please don't talk nasty to us.

(You should have heard the conversation I had with my friends a couple of years ago about whether 'a' or 'an' should be used before the word 'historical'. They were being self-righteously ignorant and willfully stupid, but I didn't tell them so. After trying to explain the scientific facts twice, I gave up. There's only so much you can do.)

Xopher, thank you for making your second point of post 243 with such elegant economy.

C.E., you may want to remember that we don't actually have an obligation to pay attention. Since this isn't a courtroom, nor are any of us here in a reportorial capacity, or anything like that, this is free time. Some of us, at least, found your perspective on the history of copyright law and purpose consistently missing the point, think that in its proportionately sized way Ellison's suit did significant damage to principles of net operation we find desirable, and so on. None of this is to say that we can't be convinced, but neither do we have a duty to be shouted at like someone trying to be their own lawyer and screwing it up. This isn't our job time, and it's not yours either. This isn't even like a presentation to the Chamber of Commerce or a users group or something. It's conversation, albeit often erudite and footnoted, and right now - for me, at least - you're missing it.

The thing is, sometimes I realize I'm missing something I really ought to know, whether it's comfortable or not. I don't think that my comfort level of the moment is a measure of truth. So if there's something you want people like me to know, I'd appreciate you working at a bit to make it easier for us to get it rather than dismiss it.

Xopher: What means "HAWE" in this context?

Bruce @246:
HAWE = Hugo Award–Winning Editor, but other interpretations are of course invited.

It has nothing to do with hemming; the fabric puns are on another thread.

Gracias, Abi, designated Xopher for this post.

Bruce @248:
designated Xopher for this post.

In the Netherlands, where I now live, there are signs all along the roads asking "Ben jij Bob?" ("Are you Bob?"). It's all very confusing until you find out that Bob is the Dutch version of a Designated Driver.

Xopher is, perhaps, the Making Light version of a Designated Punster. The spirit of Xopher may occasionally infuse one of us for other purposes as well, seizing our minds through our screens, controlling our fingers on our keyboards to express some arcane information about New Jersey, Ganesha, or gay culture.

They say there is actually, somewhere, the True Xopher, Xopher Prime. I have never seen him, myself, so I wouldn't know.

I think it makes sense to approach Xopher as a voudon phenomenon. His ti bon ange (little good angel) animates his body on a regular basis. His gros bon ange (great good angel) propagates via the net, and probably other methods of communication, we await silent Tristero's empire, and may come upon whom it will should a thread warrant it.

Drat you, Bruce, I have other things to do than be inspired to poetry right now!

The ti bon ange wakes and sips its tea.
The day awaits, the curled-up sleeping man
Lies ready to inhabit, so it can
In all he does, express divinity.
In cyberspace, the greater angel stirs
And spreads its bit-fledged wings, extending far
Beyond a body's reach. The shining star
Of Coming Light unfallen, it confers
Upon its willing agents powers thus:
The well-wrought pun, the gentle quip,
The tactful hint, the jest whose pointed tip
Is yet unbarbed. And so it graces us.
O Xopher's angel twins, the great and small,
Come comment here, enlighening us all!

My "talking nasty" is intended only to stop people from continuing their misuse of the transitive property of equality:

SFWA made a mistake
x is a member of SFWA
Therefore, x is responsible for the mistake, and agrees with the policies behind the mistake (which, of course, are Evil)

For that matter, the same goes for a committee member who was not involved in the mistake and can't defend him/herself effectively due to other obligations.

I'm still seeing that in this thread, although it looks like it has toned down a bit. Fortunately, it's not as bad as on BoingBoing, which is degenerating further than I thought probable over a holiday weekend.

C.E.: I have to ask. Does "talking nasty" for those reasons ever work? I mean, can you point to even one success in ten or twenty doing it? I am frankly boggled to see someone whom I know to have experience with the net laboring under the delusion that you can simply out-rude people into wisdom, and if you're serious about it, you've just forfeited pretty much all my respect. That is monumentally, staggeringly unwise of you, and calls all the rest of your judgments into question, as much as would (say) an American diplomat to South Africa launching into a speech about his "homeboys" and "n***ers" there in that fine country.

Not to mention that I don't think you've even got the problem correctly identified here. I think - though of course I'm not sure - that at least nine out of ten people here would summarize the problem about like this:

"SFWA's VP did something very foolish, in issuing badly made and thoroughly unchecked demands for the removal of material from some archive site, under the DMCA. Turns out that he had neither a list of works that actually are in anybody's sense copyright violations nor permission from all the people he claimed authority to speak for. The Prez has issued a short statement that's obviously intended to be calming (and may or may not calm you depending on your views), but it's a gawdawful mess, and what with the Worldcon and holiday weekend and everything, it'll take some time to figure out where SFWA is as an organization on this and what to do about it."

I think very few of us ascribe any collective guilt to SFWA on this, not least because lots of us either are in it or have many connections to it, and the whole thing came as a surprise. Indeed, it is that surprise quality that's a big part of what's wrong with all this - it should never have been done as a secret, but out in the open, with discussion of how pirate sites work, comparison of priorities, the construction of valid lists, review of notices to make sure they conform with the law, and so on. I see that Cory's got a literal handful of collective-guilt enthusiasts, but that's not what's at issue here.

So color me really wildly unimpressed.

I'm going to go take a break now before I spin myself into any more of a tizzy.

#252 - Teresa has posted how things looked from her vantage:

http://www.boingboing.net/2007/08/30/science-fiction-writ-1.html#comment-4513

My version of events:

1. Andrew Burt screwed up completely. His computer expertise isn't expert. He knows jack about copyright. And he's either too dumb to grasp, or too self-centered to admit, how much his actions have damaged SFWA's credibility.

Last I heard, he was still insisting that he'd only made a few errors; that double-checking the list of titles to be taken down before he sends it out is to much trouble for anyone to have to do; that his search protocol did not, in fact, suck so bad it could cause a continental low-pressure zone all by itself; and that the people criticizing him were doing so on "ideological" grounds. In short, he isn't taking responsibility.

2. Michael Capobianco, current President of SFWA, may not write deathlessly brilliant press releases, but he's a good guy. More to the point, he's not the sort to push anyone out the airlock, even if they're Andrew Burt.

3. The rest of the internet observes that Andrew Burt hasn't apologized and fallen on his sword, and Michael Capobianco hasn't ordered him to resign. They have concluded that SFWA approves the DMCA and the takedown order.

4. SFWA, as usual, has little or no firm policy, and is tied up in flamewars in the members-only SFWA area on SFF Net.

5. Some number of SFWA members are appalled at how bad SFWA has made itself look. Others think they've maybe heard of Slashdot and Ars Technica, but aren't sure what they are.

6. Rule of thumb: given a range of possible explanations for some action on SFWA's part, pick the one that assumes the organization is in a state of chaos and is having a flamewar about it.

#255: Oh, if she's right, that's unfortunate. I was hoping that maybe Andrew Burt was either waiting for the dust to settle before taking responsibility, or too busy making amends to craft a public response.

I think it makes a difference to know that taking down those other works really wasn't intentional.

I am getting more than a little tired of the tendentious characterizations of Cory Doctorow from some people in this thread.

First, Cory is a friend.

Second, Cory is a close business associate: of mine, by virtue of editing and publishing his SF novels, and of Teresa's, by virtue of her work with BoingBoing.

Third, the repeated claims that Cory's "rhetoric" is somehow over the top, "damaging to his cause," etc., are obviously attempts to move the discussion's Overton Window by insinuating that there's something wild-eyed or unreasonable about his (actually quite carefully-argued) positions.

Cory isn't infallible, any more than anyone else is, and I've seen him quickly and gracefully acknowledge correction when it turns out he's been dead wrong about something. The real disagreements between Cory and certain other parties in this dispute, including at least one of whom is posting here, are moral and ideological. They're fundamental disagreements about what, in our social life as human beings, we should value. I don't have the background and training to assess the merits of C. E. Petit's attacks on Fred von Lohmann's legal arguments. I have all the background and training I need to know what I value. And when I see someone in a conversation explain that they're deliberately "talking nasty" in order to bully others into accepting their interpretation of a complex and contested state of affairs, I don't need any technical legal education whatsoever to determine who is and isn't being "damaging to their cause."

Per #118, Capobianco might request Burt's resignation, but doesn't have the authority to order it unless "two-thirds of the officers other than the officer concerned so vote".

JESR 244: A pleasure. Thank you for noticing.

abi 247: Thank you for manifesting me at the appropriate time.

___ 249: So you think of yourself as My priestess on those occasions? Or am I just being too Wiccan?

I find your last paragraph disturbing. I always thought I really was Xopher Prime, but now that you put it in those terms I'm not so sure. What if I'm not? What if I'm just the most frequent vessel for those energies? And what kinds of posts will I make if The One True Xopher ceases to speak through me?

Bruce 250: Right now I feel like my ti bon ange is about to stop animating my body at all. Three sets of twelve squats with 215 pounds on my shoulders was only the beginning. Also, I'm sleepy.

abi 251: All kidding aside, I am inexpressibly honored to be the subject of one of your poems, not to mention flattered to the point of embarrassment by its content. If that's really how you see me I must be a better person than I normally think I am. Profound thanks.

C.E. 252: That chain of "logic" is, I agree, stupid. But there's a big difference between saying "that doesn't make sense" or even "that's stupid" and saying "you're stupid." Or even saying "I don't care if this sounds condescending." If you sound condescending, even if you're factually correct, people will be disinclined to listen. Since you are a smart person who is capable of working this out, it sounds like you mean that you've given up on trying to convince us. If that's the case, why tell us anything?

Also, I think you may be carrying your anger at the goings-on in BoingBoing back home to us. Please examine that, and if you think it's true, please try to stop. We (and you) deserve better.

252:Take it easy. You're not helping your case here. I'm reminded of the old expression.

"When the facts are on your side, bang the facts. When the law is on your side, bang the law. When you've got neither, bang the table."

For the record, I found C.E. Petit's legal comments at #222 interesting and informative, and #239 still interesting if getting rather testy. Note that I found them informative even as the guy who used to read and accept/reject DMCA takedown notices at my ISP. Now if he started getting a bit bad-tempered after that, maybe, just maybe the flak already starting to fly his way at that point had something to do with it.

Also, I note that when he said "talk nasty", I don't think that was his own view of what his earlier posts were supposed to do; it was a direct quote from another ML poster - who was in his turn trying to pour oil on the waters.

While it may be futile at this point, I think everyone involved trying to soothe the heat of the discussion is still worth an effort in itself.

In summary, my! aren't those lovely petunias over there! And what nice weather we're having today!

Xopher Prime @259:
I don't know that I would consider myself as your priestess; I'm not Wiccan, so it's not my habitual vocabulary. Agent? Ally? Sister in arms?

(Xopher Prime stopping to speak through you? You're the incarnation of Xopher Prime! Or perhaps the instantiation.)

About the sonnet, though. I find I can't lie in verse, or express a view I don't hold. I can choose among truths. I can imagine myself in situations I am not in, and figure out what I would do. But what you read in there of respect and inspiration is what I see.

We now return to our scheduled thread topic.

Um, what I said was "sounds condescending," primarily because things often sound different on screen than they would in person. Someone else called it "talking nasty," and I merely quoted that... which, in turn, as I read it again, sounds different on screen than it would in person.

So, in any event, I'm stuck. I'm sick and tired of seeing people misrepresent the law and facts of these kinds of situations, and I'm even more sick and tired of not being in a position to calmly correct things because I'm bound by other legal obligations (such as loyalty to other clients I am representing). No doubt that makes me sound more irascible than I really am on the underlying topic — I'm much angrier about misrepresentations and misattributions than about anything else.

So, therefore:
* I didn't participate in the notice Mr Burt sent to scribd.com.
* I do not represent SFWA. I was not consulted on this particular notice, despite being on the committee; and more than that I cannot say, because it goes directly to the fact that
* I represent other persons whose work has been pirated at scribd.com.
* scribd.com is not eligible for DMCA safe harbor protection under either § 512(i) or § 512(c)(3)... and that goes for all aspects of § 512
* It took me three minutes in a public database to confirm the previous point; I'm rather irritated that nobody who is making public attacks on this topic seems to have done so. I'm only being this cryptic because my loyalty to my other clients requires me to do so in this forum... no doubt my communication to scribd.com on behalf of one of those clients has already been posted at chillingeffects.org (which is, itself, a rather misleading site, but that's for another time).
* My position — and my clients' — is that it's the copyright holder's choice. If Eric Flint, or Cory Doctorow, or whomever, wants to have his/her/their works posted on the 'net, that's their business. If my clients don't, it's not some IWTBF activist's business to decide that it's actually to the holder's benefit, whether one is coming from a policy perspective, a legal perspective (see footnote 6 of Tasini), or simple bloody common bloody courtesy. Remember, "overenthusiastic fans" (to quote the district court judge in Ellison), your idea of what is in the author's best interest doesn't consider the author's other plans and obligations.
* I take this "all of SFWA therefore believes" bovine byproduct perhaps too personally, because I (like Lt Macdonald) was a career military officer and suffered through that during and immediately after the late unpleasantness in Southeast Asia. I resent it even more when an extreme position like Pournelle's is taken as representing anyone's other than certain arrogant dinosaurs.

And muscle relaxants don't tend to make for the most lucid posts... which is one reason that I'm not writing up any legal documents this weekend.

Clifton, you make excellent points. It's why I'm giving myself some cooling-off time.

re #222, posted by Mr. Petit.

SFWA's recent notices to Scribd.com fell far short of the "substantial compliance" required by the DMCA. Among their many defects, the notices failed to identify the works allegedly infringed, as required by subparagraph (ii) of 512(c)(3)(A). As the statute Mr. Petit himself quoted makes clear, notices that fail to include this information may be ignored by service providers.

Of course, in this case, Scribd.com did NOT ignore the notice, and instead attempted to solicit more information from SFWA. SFWA nevertheless failed to provide any notices that substantially complied with all of the requirements of the DMCA.

I understand Mr. Petit is not speaking as counsel to SFWA, and thus he may not have all the facts at his disposal. If he investigates the specific notices at issue here, he will see that they were entirely insufficient. This is not a matter of disputed interpretations of fine legal points -- the notices fail to measure up to the plain requirements of the statute and the CCBill ruling.

I trust Mr. Petit can ask Dr. Burt for copies of the relevant notices, if he would like to acquaint himself with the actual facts involved in this dispute.

C.E. @252: SFWA made a mistake
x is a member of SFWA
Therefore, x is responsible for the mistake

Well, I've heard a lot of flak fired at Burt for sending the takedown notice on behalf of works he did not represent. And I've heard some flak towards Capobianco for not having a handle on what his organization is doing.

A common blanket-like statement is musings by people who ponder whether they're going to drop their SFWA membership (or not join if they're not yet a member). Which seems reasonable, if you're joining an organization that alleges to represent your best interests, but the leadership consistently does not, then it sort of makes sense.

Beyond those types of statements, I'm not sure where anyone is holding every member of SFWA responsible for the actions of it's elected offices. If there were such statements in the last 260+ posts, they must have been rare enough that I missed them.

C.E.@263: I represent other persons whose work has been pirated at scribd.com.

I don't think anyone is having a problem with that. I'm pretty sure that the issue for folks mad at Burt is that he included authors that he did NOT represent.

Now, you can argue whether Burt's actions hurt some author he does not represent. But as much as you represent your author(s), you do NOT represent the folks who did NOT want scribd given a takedown notice for their work.

I think it's safe to say that Cory's reputation as an author is based on his skills as an author and his willingness to embrace a more relaxed stance on the rights to his work. He doesn't use DRM. He puts his works up on the web under various CC licenses.

And if someone's reputation is based in part on a more laid back attitude on copyright, then having someone send a DMCA takedown notice on their behalf, when it wasn't their business, then you will either understand the potential damage of having what is considered by many to be the most draconian copyright law in existence invoked in someone else's name might have on that someone's reputation as a defender of fair copyright law.

I am certain that you are following the letter of the law as best you can in defending your client's rights and fighting potential copyright infringement on their behalf.

But this isn't about whether something is legal. It is about (1) someone taking it upon themselves to send takedown notices on behalf of authors they do not represent and (2) the potential damage to reputation that those authors might get.

There have also been some (3) side conversations about misuses of the DMCA, as well as the general un-fairness of the DMCA. But those aren't questions of law so much as they're a question of fairness.

But no one is questioning that your actions on behalf of your clients are legal. That isn't the point.

Regarding the idea that some people are asserting some sinister theory of SFWA's "collective guilt": What SFWA has is a political problem.

Yes, the statements of some prominent SFWAns (Howard Hendrix, Jerry Pournelle, Andrew Burt) about the Internet, digital rights issues, authors who give away some of their work, "pixel-stained techno-peasants," etc., have indeed been taken by some onlookers to represent the organization as a whole--or, at least, a major tendency within the organization as a whole.

This is a normal part of how human politics and perception work. The scarcest resource in most human affairs isn't money, it's attention. If several members of the Democratic Party leadership were to, within a few months of one another, call for the public execution of leading opera stars, it would not be unreasonable for the average citizen (who doesn't, in fact, make a major study of the internal nuances of the Democratic Party) to take away the impression that the Democratic Party stood foursquare in favor of capital punishment for opera performers.

Likewise, in the past few years, SFWA has mostly impinged on the consciousness of a lot of younger and more net-savvy SF people, including up-and-coming writers whom SFWA probably wants to be recruiting, when a prominent SFWAn does the Internet equivalent of spluttering that the crazy rock-and-roll music those kids listen to, it's just noise, and by God we need to crack down on those damn thugs with their greased-back hair and tight pants and so forth.

The fact that onlookers conclude from this that SFWA must be full of fulminating old farts with a chip on their shoulder about the Internet does not indicate that the onlookers are wicked practitioners of "collective guilt." It indicates that SFWA is making a bad impression. It indicates that the organization has a political problem. If it wishes to make a better impression on a particular cohort, it needs to take certain positive actions. Alternately, if it doesn't care what that cohort thinks, it can go merrily on its way.

How the world works isn't a secret.

The fact that onlookers conclude from this that SFWA must be full of fulminating old farts with a chip on their shoulder about the Internet does not indicate that the onlookers are wicked practitioners of "collective guilt."

And that is, ultimately, the reason I decided this month not to renew after 15 years of membership. Even before this whole brouhaha coughed its digital rights furball all over the internet's shoes, I had come to the conclusion that SFWA is still too stuck in the past to be much help to the lowly Steph. This just confirms for me that I have made the correct decision.

Maybe something or someone awesome will come along to change it. I hope they do! In the meantime, I think I'll go buy some books with the $70 I'll be saving.

Isn't SFWA a bloody *membership organization*?

The leadership are *elected*, right?

THROW THE BUMS OUT!

238: "a book by the KLF"

I think it is fair to assume that the "Kopyright Liberation Front" have no problem with other people liberating their kopyrights.

Patrick @#267: Thank you. That's it, exactly.

I think we're avoiding the worst of the flaming here.

On re-reading Mr. von Lohmann's letter, I was struck by how thoroughly it rips apart Mr. Burt's claims to have written a DMCA notice which is "substantially compliant".

I was also struck by how selective Mr. Petit's criticism was, not even acknowledging that the concept of being substantially compliant was part of the paragraph that he took his one-sentence quote from.

As a non-lawyer (and from a different jurisdiction), I read Mr. von Lohmann's letter as saying two things:

1: Get a lawyer before you make a bigger mess.

2: Thanks for telling us, but if you hide valid complaints in a sack of garbage, next time they'll go out with the garbage.

Now, there's one bit about it which may be my misunderstanding. Mr. von Lohmann tells Mr. Burt to send a written notice, next time, but the act has a reference to an "electronic signature", from which I infer that an email notice can be compliant. But in this case it's probably sensible legal advice to put it in writing. On the evidence, I'd doubt that Mr. Burt is competent to apply an electronic signature.

Oh, and while I remember: I declare, under penalty of prejury, that my mental state is not, as far as eye am aware, being affected by any substance proscribed to me by a competent magical professional. Fatherless, I am of Sony mined and in fill purse session of my Fazackerleys.

abi @ 251

That was lovely. And one of the nicest encomiums I've seen in a long while. The longer I spend on ML the more I wish I'd found it sooner, so I could have known people like you and Xopher that much longer.

As someone who is not a member of SFWA, not a professional writer of fiction, and has not been connected with fandom for more than 15 years until just a few months ago, I'd like to try to represent the view of many people seeing this tempest from outside.

The long and short of it is that they're not going to care about the legalities of it. Most people who've thought about it (not many, I believe) have firm views about copyright; it appears to be a very polarizing issue, not unlike abortion and the separation of church and state. I doubt that very many of these opinions are well-informed with legal expertise, but that's because from their point of view it's a political issue, not a legal one. It attaches to questions of freedom of speech, to questions of property rights and ownership, and to issues of generational conflict, because most of the defenders of strong copyright are older than the defenders of relaxed copyright.

So PNH is correct in 267 that the venue for this argument is the court of public opinion, not of law. Not because it should be there (or not), but because it already is. And the more mistakes of the kind made by Dr. Burt in the name of SFWA, the less respect the public will have for any argument for enforcement of copyright, even when legal and just. That's a bad thing from everyone's viewpoint, I think.

C.E. Petit @ 239 - I believe you're being too harsh on FredvL's statement about the non-compliant DMCA notices. I think you're misreading "ignore" in a global sense, akin to "the ISP can pretend it never heard of you if the notice is noncompliant", and then pointing out that 512(c)(3)(b)(ii) says the opposite. But in context, READING THE PRECEDING PARAGRAPH, I think FredvL meant it in a local sense of something like "the ISP doesn't need to do any take-downs from a non-compliant notice, the statement under penalty of perjury is an absolutely critical part, not a flourish". Of course the ISP has the obligation to respond that the notice is non-compliant, but that doesn't seem to be, err, "substantially" at issue here - i.e. Scribd was replying to Andrew Burt, not claiming they couldn't contact him (though we don't have their reply public).

[Disclaimers: I am not a lawyer (though I have studied the DMCA extensively), and politically close to the EFF, but I've read some of CEP's posts and respect them]

Dave Bell #272: I am of Sony mined

Is the the Sony that cursed us with rootkits to enforce software copy protection, or the Sony that blessed us with 70 inch LCD Flat Panel HDTV's?

Dan Goodman, on rasfc, quotes Andrew Burt:

Announcing New Newsgroup: sff.sfwa.new-writers
Description: For new&old writers to mingle
Created By: ____ (Andrew Burt)

On a good suggestion that SFWA offer a group where newcomers to the field could ask questions (no matter how introductory) and get tips from others, hopefully including old hands.

Please keep the flames out -- please respect the opinions of others and don't argue about advice given. (Cordial, respectful followup questions are of course ok.) If need be moderation will be introduced here, but let's avoid the need,eh? :-)

abi: Charlie Petit is actually giving you scrupulously careful and fair analysis, and also upholding absolutely the highest ethical standards in telling you exactly his interest. This is typical of the man, and (IMVAO) you should respect him because, in part, he consistently behaves like someone who cares people will continue to believe in his integrity. (I'm pretty sure I've been on copyright-related panels with him. I was the non-lawyer Linux-using open-source-guy sysadmin doing a decent job of being a fair moderator and not embarrassing himself overly on legal issues.)

You don't need to take his word on 17 USC 512(c)(3)(B)(ii). He was right, and you can see for yourself.

FWIW, although I loved Fred von Lohmann's letter and am about to renew my EFF membership partially in consequence, I spotted his error in overlooking the substantial compliance clause, too, before Charlie mentioned it.

Xopher: Charlie wasn't talking nasty. He's just plain-spoken, slightly ascerbic, and a bit tired of sloppy posturing.

Rick Moen
rick@linuxmafia.com

Fred von Lohmann @ 265: Eh, I spoke a bit too quickly, but fortunately flambeed crow tastes lovely. Your point is well taken that Mr. Burt's sloppy epistles did not in fact satisfy the substantial compliance clause. At the same time, C.E. Petit's actual criticism was that your letter's claim "The law clearly entitles Scribd.com to ignore noncompliant DMCA notices entirely" was incorrect as stated, on account of the 512(c)(3)(B)(ii) exception.

That is a very minor cavil, but it strikes me as factually correct, which in my book counts for something. (IANAL, but I've spent more time carefully studying 17 USC than most people, I think.)

Rick Moen
rick@linuxmafia.com

Rick @278:
I never said I didn't respect CEP. Quite the reverse, as I specifically stated. That's why I was surprised at his tone in this thread.

As others have said beter than I, there are two aspects to this matter, the legal and the social/moral. Charlie may be addressing the legal just fine (I don't know - IANAL), but his legal postings have the added effect of making him and his position sound pretty unpleasant. This really surprised me, because (as I have said several times), it's not what I expected.

The heart of my comment is that I was here, ready to be persuaded of the value of other positions on the moral issue. I was the audience* for the exposition, the undecided voter** ready for the pitch.

What I saw was a painful slide into "You people" arguments, an irascible tone, and a pretty well universally negative approach. I didn't find myself quietly nodding along, reading his comments, as I so often do.

So, sadly, a missed opportunity. And I doubt that I'm the only one who feels that way about it.

-----
* So I guess ik ben Bob. Huh.
** With my wallet, anyway.

Me @276: Is the the Sony

I wish I could edit typos in my posts here. Ah, well.

I think it's worth noting that C.E. Petit is a lawyer who is very good at being excruciatingly correct. Which is an excellent thing, really, since that wins cases. An unbelievable number of cases can be avoided*, settled, or won on technical, procedural grounds, and he's very good at that kind of thing. Charlie's remarks here are of a piece with his attitudes towards the practice of law. He's precisely the sort of fellow I'd want representing me.

On the other hand, he does sound quite grumpy. Clarity in legal matters and clarity of expressed tone are two different things.

I'm much more sympathetic to Lessig's attitudes, policy positions, tone, and prose. While I'd be happy to have Charlie represent me to conserve my copyright interests, his practice seems based around conserving copyright interests - in the long term I'm opposed to the very bits of law he is compelled to support. (Or at least that's how I've read his bit on feeding the beast at the end of this essay, here. Correct me if I'm wrong, Charlie.)

Anyway, it doesn't seem fair to criticize Charlie as a representative of "teh MAN" versus Lessig & Doctrow's as a representative of us poor folk. That's kind of overblown - he's not positioning himself as an epic figure of opposition**, he's just being a sourpuss.

*the main goal, in civil law.
**no goggles, for one thing.

Bruce@274: Most people who've thought about it (not many, I believe) have firm views about copyright; it appears to be a very polarizing issue,

Copyright has behind it at least two mutually exclusive viewpoints:

(1) those who think of copyright as representing a permanent property, like a deed to a farm. These folks believe they should have eternal copyright to the stuff they've created, but might be willing to give it up a century after they're dead, because, well, if that's all they can get, then they'll take it and push for more.

(2) those who think copyright should in some way reward the author for the service of creating a new artistic work.

There is a much smaller minority who believe (3) that information wants to be free and copyright should not exist at all.

(1) is incompatible with either (2) or (3).

When folks from (1) talk about copyright, they generally represent their oposition (2) as actually being in (3), which is a strawman attack, sure, but hey, this is about persuasion, not what's right.

These competing and completely incompatible notions of what the law should be is what makes the perfect breeding ground for polarizing the debate.

Either copyright is a permanent property, or its a payment for service. It cannot be both.

Greg nails the fundamental issue, I think.

There are also some matters that are kind of factual, but depend on necessarily incomplete evidence. "What is piracy doing to my sales?" is the key one for authors, and there simply isn't ever the data to permit an entirely confident answer. We can talk about what has happened to this person's sales and that, and how this experiment and that have worked out, but...all of us who've taken part in selling fiction or just trying know that there's a certain ineffable factor at work, and effing the ineffable only takes you so far. Trends are fine, but as one of my early doctors said, it doesn't matter if a disease affects one person in a hundred thousand if that one is you. Then it's one in one as far as you're concerned.

We make different assessments of risk and opportunity, and any line drawn in the law must necessarily have an arbitary component. We feel differently about that, too.

And so it goes, on and on.

Greg, 283,

An alternative view of #2 could be stated as:

Copyright is a useful legal fiction that turns ideas into property just long enough so that they can be sold. It's like curséd faerie gold that turns to lead at sunrise.

We're in an argument where some people think they are arguing about when sunrise should come (#2), others are insisting that gold is gold (#1), and a few claim that it was lead all along. (#3)

The faerie are busy making new gold - they know that sunrise always comes.

(1) I'll accept "grumpy" as an accurate description. Some of this comes from back spasms (Flexeril isn't too kind to good writing). Some of it comes from my frustration at not being allowed to thoroughly and publicly bitch-slap several parties for poor judgment (on both sides) and for perpetuating serious errors of fact regarding the whole scribd.com situation. Bluntly, none of the public actors in this little unmellowdrama would emerge without some mud... but scribd.com (if one knows all of the relevant facts) comes off the by far the worst. And that's before getting into the legal-theory issues.

(2) The biggest problem with this entire debate comes from a fundamental problem with the copyright debate. Copyright law treats all "writings" as if they have the same legal characteristics: a copyright term of x that is supposed to encourage "Progress in the useful Arts." The real problem — as the Supreme Court tried to grapple with in Feist, but (due to the procedural posture of the case) wasn't even allowed to reach, let alone resolve — is that not everything that is put in words, or in pictures, or in sound, or in any other creative medium, is purely expressive. In short, there are facts in them there words; there is information hiding amongst the deathless phrases.

Ultimately, this illuminates the blind spot of the IWTBF movement: It cannot see the phrasing for the facts. Perhaps facts do "want" to be free. Perhaps some facts are so bound up with phrasing that the phrasing has to go along with the facts on the jailbreak (e.g., King's "Letters From a Birmingham Jail"). When it comes to works of fiction, though, any facts presented are clearly subordinate to the phrasing, and I'm afraid they're going to have to remain in captivity... unless we want to return to the Renaissance and subsidize everyone who is producing "Art," for some value of "Art."

This also masks another aspect of the problem: Who gets to decide what is "Art" and what is not? We certainly don't want lawyers doing it, as (as a group) lawyers' ineptitude with words is exceeded only by the advertising industry, and it's impossible to overstate lawyers' (as a group) inability to appreciate "Art". That's why the lawyers chose a "one size fits all" solution at the level of law, and made "it's only a set of facts" an implicit defense: That forces any decision on one constitutes a set of facts in front of a jury. In short, the "monolithic copyright" represents a general case determined by lawyers, allowing for exceptions in particular instances to be decided by nonlawyers (after far too much legal posturing, but we too need to get paid!).

Conversely, the most-radical IWTBF approach actually represents a return to the Renaissance concept of the "patron of the arts" as the economic motivator for "Progress in the useful Arts". (I've gone on at length about this in other fora — with the footnotes I promised not to import to Making Light — and the argument is much more nuanced.) The short version, though, is that this sort of thing represents a clash of economic postulates that are both so subject to abuse that one cannot say "I vote for this side, because it has no defects." On the one side, we get Disney, with its selective view of copyright and intellectual property as "whatever keeps anyone else from ever profiting... but we don't have to pay money for children's hospitals, either." On the other side, we get "overenthusiastic fans" harming the resale value of materials a rational economic actor (presuming that we can ascribe "rational" to any artist!) released to the public with an expectation of profit.

There isn't an easy solution. There are only imperfect balances that will inevitably result in some abuses. Remember, a lot of the people I represent — such as my academic clients — rely upon fair use and the fact/expression distinction for their own efforts to promote "Progress in the useful Arts." Don't assume that I'm a "copyright maximalist" merely because in this instance I see that the model adopted by scribd.com as clearly a wrongful one.

283 I'm afraid that Greg sets up a false dilemma with the way he words his first lemma:

"those who think of copyright as representing a permanent property, like a deed to a farm"

(emphasis in original) There are two fundamental problems with this statement:
(a) The word "permanent" clearly implies "never-ending," despite the attempt to acknowledge limitations later in the statement, and
(b) The assumption that all aspects of "property" have the same duration

This is a common mistake made by economists when they talk about a unitary concept of "property": They forget that property has many, many elements to it. Consider, for example, a family farm. If we look at the deed to the farm, it will say that the land belongs to x. That, however, does not give x the right to exclude aircraft from flying over his land; nor does it give x the right to hoard all of the water from the stream that crosses his land; nor does it give x the right to prevent the nearby city of Oz from renaming his land as part of Emerald City Estates, a low-income housing development well separated from the rich folk at Quail Run; nor... You get the idea.

Similarly, copyright itself recognizes — if rather ineptly — that a Work has more than one set of rights in it. You might want to ponder Borges' story about Pierre Menard and Don Quixote. Unfortunately, Greg's formulation does not, and it excludes this substantial set:

(1a) Those who think of "copyright" as a set of property rights of varying duration and value, some of which they're willing to give up at different times and under different circumstances than others, which also implicate other property rights. Further, these people accept the concept of a "nonpossessory trespass" as an acceptable diminution of their "property rights."

One word for these people is "professors." That's not the only word for them, but it's certainly an obvious and pretty uniform exception to Greg's formulation... and points out that he has set up a false dilemma.

I'm trying to figure out how IWTBF got involved in this. I thought the reason for the kerfuffle was that SFWA asked scribd to take down works they had no right to ask scribd to take down.

Would we have had an internet flame storm if the SFWA take down had been competent and limited itself to only the works they had a right to take down?

I'm not being rhetorical here. I actually do wonder. I suspect there might have been some. But SFWA would then have shown that they, in fact, represented the Asimov estate, and most people would have calmed down.

The discussion we have now clearly involves IWTBF, but I don't think it started out that way (despite the initial smackdown by Cory Doctorow).

C.E.: A ton of sympathy on the back pain. That stuff sucks a lot. Have you tried taking extra calcium, magnesium, and zinc? I find that a supplement with a lot of those three helps a great deal when I'm having cramp and spasm problems.

I think, though, that you're illustrating Greg London's point, in some ways. I understand that the "information wants to be free" anti-profit crowd is one you have to deal with when dealing with piracy. I helped track down unauthorized copying and distribution in gaming for a while, and my boss of the time remembers me once sighing and saying that I'd rather go back to arguing with homophobes and Nazis because they're less sanctimonious.

But Cory, to pick an example that's handy, is emphatically not anti-profit. Nor was Jim Baen. Nor is any businessperson who gives away free samples to build an audience. They're simply looking to make their profits a different way. Partly this is attitude, and partly it's a different assessment of the facts about what piracy costs them, and partly other stuff. But I'm going to go out on a limb here and guess that not one Making Light regular thinks authors shouldn't profit from their work, including making a living from it if they can find a willing audience.

As far as I can tell, looking back over this thread, the conversation was all very civilized, and in fact included a lot of people thanking and agreeing with Mr. Petit, until he started talking about how pleased he was to be condescending to us, at which point a few people began to be a little upset at him. His response, of course, was to start bolding bits of his posts pointedly, and to use a lot of the flamer bingo tactics we described in that other thread (saying he's just trying to get a response, starting posts with a sarcastic 'Um, no,' etc.). Even when he acknowledges that perhaps he's come across in a way he didn't intend, there is no effort at apology, and it even comes off as if he expects us all to know what he means, even if it's not what he says.

Mr. Petit, if you're having back problems, I'm very sorry. When you're speaking to your back, feel free to be sarcastic, angry, unapologetic, and condescending. I know I am to rebellious bits of my body. To friends, and to people I'm trying to convince of my position, I try to be nicer.

abi 262: You're the incarnation of Xopher Prime! Or perhaps the instantiation.

I prefer the term 'avatar', but people will be confused by its internet meaning.

It may amuse you all to know that when one Googles "SFWA," this thread is the third item in the string.

FWIW, the first occurrence of "IWTBF" that I saw in the various writing on this flap was C.E. Petit's posts here. (I was puzzled by the acronym). Cory Doctorow's initial public blast, while furious, was pretty much confined to the facts of the case[*]. That said, we're all seeing here the cast-off embers of a (reportedly) white-hot flame war in the SFWA private forums, so that may have been a response to something more ideologically tinged happening in there.

On the other hand, Mr. Petit has potential allies who support both copyright and nontraditional business models (just as some free software developers also do proprietary stuff --- viz. Linus Torvalds's erstwhile day job at Transmeta), but who are outraged by the ham-handedness and plain stupidity of SFWA's actions in this case. He's probably not helping himself long term by even appearing to lump all the critics in with the ideologues.

[*] I suppose, to satisfy the painfully pedantic, I might say that it was Cory's version of the facts of the case. Is there someone else's version he's supposed to present?

Xopher: Avatar is better than none.

I've been thinking how to phrase a thought, didn't come up with anything very good, and have decided to say it anyway.

Since most of us are neither lawyers nor involved in litigation over this stuff, we do tend to make arguments that shift from legal to moral to evidentiary to other ground and back again. I don't see this as a bug. Some of us are say that the free circulation of electronic copies is good for business and good for society at large, while the DMCA leads to bad use of legal resources and pushes a social vision we're opposed to. This is not fundamentally separable, I think - it's all about what the general welfare is, what the individual good of creators and their audiences is, and everything, in one bundle.

C.E. Pettit @286

Thanks for expanding your definitions to let us see where your position is coming from. This is what I was hoping you'd do, once you'd stated your legal opinion on the current cause célèbre.

There'a sn additional nuance to the queation of property definitions and rights that I think is central to this whole issue of artistic copyright: the rights and needs of the artist versus those of the distributor / purveyor. Disney is a special case in that a lot of its "intellectual property"* actually was created within (some umbrella of) their own business organization, but in general copyright holders are very often not creators. Surely it's clear that their interests may not be aligned at all? Doesn't that require us to include both classes of owner separately in our definitions?

An example: my wife was at one time a professional artist**. Once, when approaching the owner of a gallery to show him her portfolio, she was asked "Is the artist dead?" The owner thought that the work would be more valuable if no more would ever be created. My wife, of course, couldn't support that position. A hypothetical audience (always a pert of any discussion of art) would probably prefer that more works were created, except for some collectors whose view is like that of the gallery owner.

* Scare quotes because I think this term is monstrously over- and misused.

** One reason she's not anymore is that it didn't pay enough to cover the cost of materials.

Ethan @ 290:

Let's be fair — the conversation wasn't really "all very civilized" until C.E. stepped in and ruined everything. Way back at the beginning of the thread you'll find comments like "[Mr. Burt] probably feels he's a Holy Warrior against the Dark Forces Lurking In The Dark Ready To Steal My Loot," and "this latest stunt shifts my opinion [of Mr. Burt] from 'terribly misguided' to 'thuggish and mean-spirited.'" Those seem personal to me. Even if they weren't directed against an actual participant in this thread, I can see how comments like that could get into someone's craw, particularly if the someone knows Mr. Burt socially.

jere7my #296: Good point. I apologize. I meant, and should have said, specifically the back-and-forth between CE and others. He started out fine, everyone else started out fine, and then all of a sudden he busted out the condescension.

On the other hand, I don't particularly see that I said or implied that CE "ruined everything," or, indeed, anything.

Breaking: SFWA board suspends the ePiracy committee, pending legal review. They're also appointing a temporary committee to see if there's any consensus among the membership as to what they ought to be doing.

(I am in no wise a SFWA member, nor a lawyer of any sort, but I just saw this:)

Quoted from http://community.livejournal.com/sfwa/31606.html :

"The SFWA Board has just passed the following motion:

Motion: That, effective immediately, all of the activities of the current ePiracy Committee be suspended and the Committee itself be disbanded until such time as the Board has had the opportunity to review the legal ramifications of sending out any additional DMCA notices, as well as to explore other methods by which SFWA may be able to assist authors in defending their individual rights, while ensuring that any such activity will not unduly expose SFWA to negative legal ramifications.

Further, that the Board shall issue a call for a temporary, exploratory committee of between five and nine individuals to investigate the views of the membership on issues of copyright, authors rights, what role the membership would like to see SFWA take on these matters and what level is risk (legal, public relations or otherwise) is acceptable to the membership in regards to that role, and what - if any - public policy statement SFWA might issue on these subjects on behalf of its membership.

Finally, that the Board, in conjunction with the findings of the above committee and its own deliberations, will work to develop a new, permanent committee with a clear matrix of operations and goals, whose purposes shall include, but not necessarily be limited to protecting the copyrights of our member authors who desire such protection in a way that complies with the applicable laws, and to help educate both our membership and the public at large in regards to copyright law."

***

This strikes me as a reasonable attempt to straighten this mess out: discover the will of the membership, then enact it in a way that's consistent with the law.

May it come to pass.

I'm not sure the current state of intellectual property rights* is subject to rational debate by those of us trapped inside the boundaries of the system. We can see the balance of power shifting, we know the Information Age is going to force IP law to evolve at some point - it's just too hard for us to see from our vantage point.

I hope this doesn't make me sound like a defeatist; I just hate to see smart folks trying to rationally debate a fundamentally irrational issue. We might as well take another swing at healthcare or religion while we're at it.

*Well, at least two thirds of IP: copyrights and patents. Trademarks don't seem to garner this type of wrangling.

Charles Dodgson #298: ^5 :-)

Ethan @ 297:

Thanks for the clarification. And apologies for boiling down your take on the situation into two words that didn't actually represent what you'd said — I was trying to be shorthanded, not inflammatory.

Lance: Go for the gusto. Let's talk about Dianetics for the trifecta of intellectual property, religion, and health care.

IWTBF so that it can go bar-hopping with the FOIA.

Greg London #266

As a side note, I have watched, in many threads, including a few in this one, casual comment making sweeping generalizations of 'if you're not for us, you're against us' nebulous quality; where people have asked for a list of authors still members of SFWA so they 'know who to boycott'. I believe that is unfairly painting with a broad paintbrush.

Rick Moen #278

Yes.

In essence, I'm willing to cut him some slack here and at the end of the day would rather have him as a lawyer rather than someone who was willing to let muddy language slide without challenge.

abi @ 249:
In the Netherlands, where I now live, there are signs all along the roads asking "Ben jij Bob?" ("Are you Bob?"). It's all very confusing until you find out that Bob is the Dutch version of a Designated Driver.

In Bavaria, there's a local, private rail company called Bayerischer Oberbahn (they run trains to & from some resorts near Munich). All the crew wear uniforms with small, sewn-patch logos reading "BOB". (Right where you usually see a name tag, in fact.) So it appears as though you're riding on a train run entirely by people named Bob.

(Maybe they all ran away from the Netherlands.)

#306

Right-oh, Bruce.

Scalzi has a nicely balanced post on this whole thing that I can really get behind.

SFWA president Michael Capobianco posted posted an announcement on the SFWA Livejournal blog. They suspended and disbanded the current ePiracy committee, and are starting over. SFWA is also forming a new committee to take a fresh look at SFWA's position on electronic rights issues going forward, and John Scalzi has made himself available for that new committee.

I was critical of Mr. Capobianco for doing 'too little, too late.' This is a strong, positive step, and I apologize.

Also, in a strange bedfellows kind of way, both Will Shetterly and Andrew Burt applaud the news. I think we have just witnessed a rare outbreak of sanity! Time to break out the Neo / Keanu 'whoa'!

Johne Cook @#309: Also, in a strange bedfellows kind of way, both Will Shetterly and Andrew Burt applaud the news.

I note that Andrew Burt approves because "SFWAns' feelings about the risk tolerance for fighting piracy have shifted." Passive voice.

Bruce Baugh at #303 -
Lance: Go for the gusto. Let's talk about Dianetics for the trifecta of intellectual property, religion, and health care.

Don't forget gnu control...

toshi@305: where people have asked for a list of authors still members of SFWA so they 'know who to boycott'.

I didn't see anyone mentioning a boycott on this thread. And I haven't seen anything in this thread that would match C.E.'s comment at 252:

SFWA made a mistake. x is a member of SFWA. Therefore, x is responsible for the mistake

toshi toshi @305, I've seen one person comment about boycotting SFWA writers, in one comment thread, and the comment got ignored as appropriate for such foolishness.

It's not a social movement, to say the least.

C.E.@287: I'm afraid that Greg sets up a false dilemma with the way he words his first lemma: "those who think of copyright as representing a permanent property, like a deed to a farm"

Mark Twain did a fine job of bifurcating the issue when he lobbied congress for longer terms. When asked how long he wanted copyright to last, he answered "for perpetuity". When speaking before congress, he argued that allowing copyright to expire was like the government stealing property from an author.

“I am quite unable to guess why there should be a limit at all to the possession of the product of a man's labor. There is no limit to real estate. ... Doctor Hale has suggested that a man might just as well, after discovering a coal-mine and working it forty-two years*, have the Government step in and take it away.”

http://www.bpmlegal.com/cotwain.html

(*) Forty-two years being the duration of copyright terms at the time of his speech.

Sonny Bono, the man who pushed the CTEA, wanted copyright to last forever, at least according to his wife, Mary Bono. Mary, in a speech to congress said that MPAA president, Jack Valenti proposed "Forever less one day".

http://www.coolcopyright.com/images/cases/eldredmarybonoquote.pdf

So, I hardly think I'm exagerating when I say that there are those who think of copyright as a deed to a farm that should be passed on from generation to generation, in perpetuity, forever less one day, when that's exactly what folks are saying to congress.

And just because a deed to land doesn't allow you to prohibit aircraft from flying over, that is irrelevant to the fact that these folks still have the mindset of "copyright==permanent deed".

copyright debate polarizes into two camps: (1) I created it, therefore I own it forever. Land deed. Family farm. Coal mine. and (2) I created it, and as compensation for my labor, I want a monopoly that will last long enough that I can pay for my time and energy.

Anyone claiming they are not in one or the other are some kind of hybrid of the two. The only view that I know of that is NOT in one of these two views is the line of thought that information should be free and copyright isn't needed to create artistic works. And that's really an extension of (2) taken to the point where the folks holding that view say they would create the work for free, they don't need copyright to make their money, and they'll make their money some other, indirect way.

So, again, it's either (1) permanent deed to land, or (2) compensation for labor to create.

For me, the seminal work about copyright term limits is Melancholy Elephants, by Spider Robinson.

Lacking both the energy and the fortitude to take a good running start and hurl myself against the wall, I am writing down my thoughts on the scribd.com/Doctorow/SFWA kerfuffle. I think that Burt was trying to do something that could benefit all parties, but doing it in such a naive way that failure was inevitable. SFWA might well have a real role in helping authors get the rights-related handling of their works that they prefer, but only as an enabler, not as an effector.

SFWA (in the form of its agent, Andrew Burt) was clearly in the wrong when it requested that a large number of items posted to scribd.com be taken down. Scribd.com was clearly in the wrong when it complied with this request from an incompetent party. Of the two, scribd.com seems the more culpable in that they took action without investigating the competence of the requestor of the action or considering the form of the request.

It's interesting, and perhaps indicates something about the attitudes of the people involved, that SFWA and Burt are taking the brunt of the blame -- this is in contrast to the reaction to removal of material from publication on LiveJournal by Six Apart, where the blame fell on the actor, Six Apart, rather than the various incompetent requestors of removal.

Reading the two e-mails from Burt as "epiracy@sfwa.org" leaves me with the impression that he is incompetent in this matter in more than a legal sense. I have the impression that he meant well, and from what he writes Burt does seem to have intended to negotiate with scribd.com to cooperatively find a way to avoid recurring unauthorized posting of science fiction and fantasy. What got him into the mess at hand is what amounts to a throwaway sentence referring to a list which might otherwise have been taken as a "scientific wild-ass guess" about the amount of material which was likely to have been posted without the approval of the holders of the intellectual property rights associated with that material.

Burt's notion that he had solutions to the practical problems of unauthorized posting of fiction is terribly naive, though, even for a computer science academic. The idea of identifying work by "statistically unlikely phrases" might be a good one, and if it is then it's probably already patented, perhaps by a commercial enterprise named for a Large South American River. In fact, most of the obvious ways of detecting similarities in bodies of text representing prose have almost certainly been thought of, applied, and possibly patented by companies which produce software for the detection of plagiarism.

Requiring declaration of rights clearance by anyone wishing to upload material to scribd.com clearly misapprehends the relationship between customer and vendor: there is really no incentive for scribd.com to make use of their service more onerous for customers than it is required to by law. In effect, the existence of the 12-inch gun of the DMCA is disproportion as a response to the gnat-like inconvenience of individuals posting unauthorized editions of sf novels, but it obviates any business case for checking customers for gnats at the door and holding them back from doing business with scribd.com. Given a legal framework that puts the onus for identifying infringements of rights on the owners of the rights and requiring the act of publication before any of the framework's provisions are in effect, it's going to be hard to find a purely pecuniary prompter of proactive publicatory prophylaxis.

Finding common ground between the purported owners of rights and the owner of a web publication site does seem possible, in particular because the after-the-fact remedies of DMCA are complex and overpowering.

There might be a good role for SFWA and other writers' organizations in vouching for the identities of their individual rights-owning members. In particular, it could be much cheaper and more convenient for a site like scribd.com to provide a complaint interface if an organization like SFWA did the work of associating author names and pseudonyms to a set of identity codes. This might allow scribd.com to accept a complaint about misappropriation of Padgett's work from some guy named Kuttner as actually competent, for example, while screening Doctorow's work's reproduction rights from well-intentioned but incompetent protest by Burt.

I have noticed the discussions on this mess in some fandom related places seems to result in a negative view on the SFWA overall even though they have loving XOXOs for individuals that wield the witty word whip with quality panache in the arguments. Usual mocking disdain for blustering blowhards.

Those are the paying customers getting an impression that the guild is run by idiots, serves no purpose and is not deserving of respect. If fans do not respect authors then they are less likely to respect copyright. Incompetence from some one with a public history of hostile malice on the subject is not the way to gain outside allies for copyright enforcement and is very bad advertising to target markets.
SFWA has in a way tarnished its brand value.

John@315, Spider Robinson came out in 2003 in support of the the Copyright Term Extension Act. So, while Meloncholy Elephants is about the problem with absurdly long copyright, apparently he doesn't think Life+70 is too long.

more info here.

The copyright-as-farm idea was discussed a bit in the Fanfic: Force of Nature ML thread last year, for those who are inclined to revisit it.

I was using the example of the farm only to demonstrate that "property" has more than one aspect to it. I thought that "farm" would be far enough from "copyright" that people would understand that without an explicit denial.

In copyright-only terms, then (and I promise this will be less clear, because the language and concepts are both less clear): A copyright includes a whole bundle of different rights, such as the right to control the making of copies (from which it gets its name); the right to create derivative works; the right to abridge; the right to perform in public; the right to claim authorship (to greater or lesser degrees, depending upon nation of origin); and so on. Each of these has different economic and other values, different duration (really — but it's very hard to explain, and it depends a great deal on other aspects of the work in question), different means of trespass, and different values in terms of the relationship to both "free speech" and "information."

I really don't think that's as clear as the farm example for pointing out that property is not an "all or none" concept in law, even if in economics it is too often reduced to an "all or none" concept.

One of the things that I have come to appreciate, as a non-American, is that many details of US Copyright law have, within my lifetime, seem very bizarre.

As an occasional creator of IP, I find some of the apparent practical details of the American system to be baroque in nature, and potentially inequitable. I find some of the customary behaviour to be inequitable to the point of legalised piracy.

For instance, the way in which corporations seem to made a grab for the electronic rights for works. It's understandable that they want to avoid conflicts between their printed edition and somebody else's electronic edition, but there are other ways of arranging that.*

The thing is, law and morality only partially coincide. There are, I gather, a couple of latin tags that are lawyer's jargon, distinguishing between crimes that are obviously wrong (such as murder) and those which exist solely by legislative fiat (Parking in a no-parking zone).

In this thread we've had several people giving examples of this: a pirated ecopy as a machine-searchable text, when somebody has a printed copy, is at least flirting with the concept of Fair Use. Part of the problem is that law lags technology, and, because of the overload of precedent, it's hard to create legal structures which allow for change.**

So we end with a situation in which the terms "author" and "copyright holder" are only loosely connected--look at the old anthologies of short fiction, and how much of Asimov's work was copyright the magazine publisher. And then we get the rhetoric of piracy harming authors. Times have changed since the golden age of SF magazines, but that distinction is important.

In the end, the law only tells you what you may do. It doesn't tell you what you should do. And that can lead into the whole question of whether a corporation is inherently sociopathic.****

* For instance, a clause to the effect that electronic rights shall not be exercised before a certain date, or perhaps that old standby of Hollywood deals, the option.***

** The UK's Obscene Publications Act leaves the decision on what is illegally obscene, for some offences, to a jury. Juries have become harder to convince of obscenity. So prosecutors, and politicians, have used alternative charges, and written new laws.

*** Given such obvious choices, I wonder if I've missed something other than blatant greed and less than competent negotiation by agents.

**** Or whether it's just a very good place for sociopaths to thrive, which is not quite the same thing. Whatever the legal fictions of corporate personhood, they can't pass a Turing Test. It's the people who take the decisions.

As a coda to this whole mess, Fandom_Wank has put together a summary post, in which one commenter offers an interesting hypothesis:

I love it! Because there is nothing so lovely as a really well-written righteous smackdown by a very pissed off person who makes their living via the printed word, and this wank is FULL of them! It's almost like the SFWA did it on purpose as some sort of bizarre creative writing prompt.

C.E.@320: I really don't think that's as clear as the farm example for pointing out that property is not an "all or none" concept in law, even if in economics it is too often reduced to an "all or none" concept.

Land has a bunch of rights that the owner controls, and a bunch of rights that the owner does not control. That a landowner cannot prohibit aircraft from flying over their land would be comparable to "Fair Use" in copyright terms. There are mineral rights. There are things you cannot do with your land do to zoning restrictions.

Both land and copyright are complex concepts in terms of what the law allows and does not allow the owner to enforce. And that complexity is irrelevant to the comparison being made.

The comparison was showing those of the mind who think they should own their copyright forever, just like someone can hold the deed to their land forever, versus those who want to own the copyright to their works just long enough to pay them for their labor, and then willingly give it to the Public Domain.

This has nothing to do with law. It was explaining why copyright is a polarizing topic, similar to abortion, the death penalty, and so on.

The law says whatever it says about abortion. And yet, it is a completely polarizing topic in public debate. And the reason for that is because the two main sides in the debate have mutually exclusive views on abortion. (1) abortion at any time is murder (2) the mother has a right to choose what's best for her body. Both of those statements cannot be simultaneously true.

Copyright is polarizing for exactly the same reason: the two main sides in the debate have mutually exclusive views on copyright: (1) authors are farm owners who want permanent ownership of their works versus (2) authors are Bounty Hunters who want to be paid for their labor. Both of those statements cannot be simultaneously true.

Therefore it will naturally polarize into these two camps.

(1) abortion at any time is murder (2) the mother has a right to choose what's best for her body. Both of those statements cannot be simultaneously true.

I disagree; all that is needed is to add a third statement: "The woman's right to decide what's best for her body overrides the fetus's right not to be murdered." Or vice-versa, of course.

Not to start an abortion-rights debate, I hasten to add; it's just that the two statements are incompatible only in a worldview which does not admit the possibility of ranking of priorities. Which may or may not be applicable to the copyright debate.

(1) abortion at any time is murder (2) the mother has a right to choose what's best for her body. Both of those statements cannot be simultaneously true.

I disagree; all that is needed is to add a third statement: "The woman's right to decide what's best for her body overrides the fetus's right not to be murdered." Or vice-versa, of course.

Not to start an abortion-rights debate, I hasten to add; it's just that the two statements are incompatible only in a worldview which does not admit the possibility of ranking of priorities. Which may or may not be applicable to the copyright debate.

If you want to keep owning your land you have to pay taxes on it every year. If you don't pay those taxes, just see how long you keep owning it.

James D. Macdonald points out that to keep land one must pay taxes; it's also true that, over the long term, to keep farm land one must keep farming it (or pay the taxes on its highest and best use) and hope that some government entity doesn't find a need for it (as happened to my family twice, in 1916 and 1941, to expand training areas at Ft. Lewis).

Land ownership does survive the title holder, but passing it on from one generation to the next involves complications. Land title can be extinguished by natural disaster.

Every time someone uses farm land as an example of extremely permanent property, my head hurts, and I'm of the fifth generatin to live on this place.

I wasn't talking about "permanence," but "divisibility of rights" — something that Greg has still not confronted in his inaccurate and extremist reductio ad absurdum characterization of "copyright." But that's getting off topic.

Still farther off topic: As an aside, Jim's example of the need to pay taxes has nothing to do with the property rights; it has to do with the state's right to regulate and to force beneficiaries to pay for their use of public goods. I realize that's splitting hairs awfully finely, but it's incorrect to say that failure of a personal obligation of the owner means that the property is somehow not property. That the land's "value" is the basis for the taxes is a means of measurement, not an obligation that actually runs with the land.

We're getting way off topic here, so may I suggest that if people want to talk about "property theory and copyright" that it goes to another thread, so we can (cough, cough, hack) keep this thread cleanly focused on its ostensible subject? I'll maintain my tangents as strictly retaliatory weapons.

C.E.@328: I wasn't talking about "permanence,"

I was. I was talking about how people relate to copyright, either (1) permanent/long after I'm dead, my great grandchildren should get royalties for my works, family farm passed from generation to generation or (2) temporary, of a duration appropriate for compensation of my labor, a bounty hunter paid a reward for services provided.

but "divisibility of rights" — something that Greg has still not confronted

I haven't confronted it because it is irrelevant to anything I was discussing. Maybe it is relevant to what you were discussing, but not me. I was discussing temporal aspects. You're talking about granularity. If you can't see those two as being different, then I don't know what else to tell you.

#194, 197:

I vaguely remember a story like that, possibly but not certainly the same one. It was in a 1970s issue of _Isaac Asimov's Science Fiction Magazine_, and in one scene Silverberg uses a giant typewriter, leaping from key to key.

that brings back memories of how bob silverberg could only work this mighty typewriter by launching himself head-first at each successive key for maximum impact, and never managed to operate the shift. he wrote this huge novel all in lower case about a feisty cat called majipoor ...

#329 Actually, there is a considerable range between those two points, because property isn't inherently permanent. Real estate may be relatively permanent, but places like Hawaii where you can't really own real estate but have something like an extended leasehold, treat property as temporary. Also, you can have property that you know is going to wear out, say for example the t-shirt I'm wearing while I write this. It is both mine and temporary. An ice cream cone can also be mine and even more temporary. I suspect that any number of writers can believe that their work is both a property in the sense of being owned rather than a service and also something that they won't be able to own or pass along indefinitely.

Scalzi speaks of "the spectacle of some of the nation's top speculative fiction writers going after each other like maddened ferrets in a wet burlap sack" on the SFWA private boards. When I read that, it struck me suddenly: that's why I miss the old SFRT on GEnie! {glyph of mischievous grin}

Kelly@332: property isn't inherently permanent

No, but when discussing copyright laws, the folks who want permanent ownership of their copyright, will talk about how copyright is like a family farm or copyright is like a coal mine, and allowing copyright to expire is no different than taking someone's land.

Mark Twain used that very argument in his speech to congress. he wasn't the first. He won't be the last.

It all depends on how you start thinking about property. If you hold the naive view that property rights are a necessary consequence of possession, with a few exceptions at the edges (the view that Locke valiantly failed to justify), then you will think it is only natural that copyright should be permanent. All this stuff about airspace rights over your farm and so on will be seen by you as specific exceptions to the general rule of permanent and absolute possession, to be justified on a case-by-case basis.

If, on the other hand, you view property rights as a political construct, created to balance the interests of individuals with the good of society as a whole, then the idea that there can be different kinds of property rights with different characteristics and limitations is entirely natural. There's no reason why your ownership of your land should be like your ownership of your shirt should be like your ownership of your copyright. In each case, whether the current legal position is reasonable or not depends on the balance of societal and personal interests in a particular situation, not on analogies between one sort of property rights and another.

When people talk past one another, it is often because they are proceeding from very different, and often unexamined, bases. This happens a lot in discussions of intellectual property rights on the internet.

The proportion of the populace who have ever thought seriously about the basis of property rights is vanishingly small, and the naive view of property is very widely held. We are already quite far from any rationally supportable copyright law, and that's something that will be increasingly difficult to change. The internet makes it very much easier to bypass copyright law, but unfortunately that doesn't just mean bypassing the bad bits. The ease of copyright violation on the internet does nothing to hasten the adoption of reasonable copyright laws worldwide.

Greg, 334, Kelly, 332,

Greg, you're insisting on talking about how people romanticize copyright as if it is durable, permanent ownership. That's fine, but Kelly and C.E. Petit are talking about something different: all the interesting ways in which property really isn't durable or permanently ownable. I don't think they are disagreeing with you, I think they are talking about something in addition to your point.

I'll go one further: they, and now I, are pointing out that the idea that all things can be owned durably or permanantly is nonsense on even moderately close examination. This is useful. Particularly since it gives a wedge for you to bring in your ideas of copyright-as-bounty when you are debating with copyright maximalists.

Late to say it, because I have been busy, but:

Thank you, CE Petit, for your recent comments (including, but not exclusively, 286). That is exactly the sort of lucidity that I've always enjoyed in your writing.

I hope your back is better now. I had a serious shoulder injury for a few weeks last summer, and I know how much constant pain can eat away at one.

Greg at #334,

My point isn't that some people don't view copyright as something that should be permanent. Many do. I'm not one of them.

My point is that there is a whole spectrum of possible opinion that can treat copyright in terms of something owned rather than as services rendered that doesn't fall neatly into the position of advocating for copyright permanence. I could for example feel ownership of my books and short stories rather than think of the writing of them as a service I should be compensated for and, at the very same time, not believe that I should own them permanently in the sense of being able to pass that ownership on to my descendants ad infinitum.

#337 ,abi says:
Thank you, CE Petit, for your recent comments (including, but not exclusively, 286). ...I hope your back is better now....

Hear, hear. I'm sorry I didn't say something similar myself.

316: SFWA (in the form of its agent, Andrew Burt) was clearly in the wrong when it requested that a large number of items posted to scribd.com be taken down. Scribd.com was clearly in the wrong when it complied with this request from an incompetent party. Of the two, scribd.com seems the more culpable in that they took action without investigating the competence of the requestor of the action or considering the form of the request.

Well, the certain knowledge that they were hosting a large number of infringing works might have made them act in undue haste.

#215 Some record labels are catching on... (also 228 & 289)

eMusic, which is essentially an online consortium of indie labels, used to give away 50 free song downloads with a free trail; now I hear it's only 25. On the other hand, they now have a free daily download for everybody, which works out to a couple of dozen albums' worth of music a year, easily. Quite a few labels dole out free samples as well.

Turner Classic Movies aired a documentary last night on Henri Langlois, founder of the Cinematheque Francaise and the pioneer in film preservation. Even Jack Valenti speaks glowingly of him, which begs a curious point: None of these films would exist today if Langlois and his like had scrupulously obeyed copyright laws. When they started out, film was relatively young and even by the laws of those times precious little could be considered in the public domain. But back then the studios didn't care if anyone wanted to see a movie seventy years from now; distributors would destroy all prints at the end of a theatrical run to discourage piracy. Virtually all of the Cinematheque's holdings would have to be considered illegal: prints that were "stolen" (even if by the film's director), bootlegged or gained by other perhaps well-intentioned but strictly speaking less-than-legal means. Years ago a friend of mine who's a film collector argued that many film only exist because copies were saved by people like him who really had no legal right to them.

Now that people don't consider films to be use-once-then-throw-away items, the studios want the rights for life plus seventy years (or, in Valenti's case, forever). Since the copyright usually belongs to a corporation, I wonder what "life+70" even means. Likewise the record companies who shed crocodile tears over the rights of the "artists," when most of these musicians will never see any royalties from their label and can't even gain ownership of their own recordings. Protection for artists? Instead, our copyright laws are a boon to the likes of Armen Boladian.

"Greg, you're insisting on talking about how people romanticize copyright as if it is durable, permanent ownership. That's fine, but Kelly and C.E. Petit are talking about something different: all the interesting ways in which property really isn't durable or permanently ownable. I don't think they are disagreeing with you, I think they are talking about something in addition to your point"

C.E., at least, was holding his arguments up _as if_ they were countering Greg's, though.

Dave Bell@521: You're thinking of malum in se (a thing wrong in itself) and malum prohibitum (a prohibited wrong).

#328 - I'll maintain my tangents as strictly retaliatory weapons. I won't, unsure as I be what the topic is or by rights ought to be - wait wait don't tell me. I may even connect it up at the end.

#323 - just like someone can hold the deed to their land forever Not really twice in the U.S. of A - deeds become pretty meaningless as opposed to recorded title because there is bundle of rights in real property. In large part because of that there is a rule against perpetuities, a requirement that some coalition of living parties can convey a title in fee simple - a useful bundle of rights. See also fallacy fallacy - an argument that because the supporting argument is fallacious the conclusion must be false.

One of the real policy issues with copyright is the problem of finding all the owners - complicated by time and changing rules as frex Project Gutenberg has a fine collection of stories from magazines of not that long ago where the copyright on the magazine was not renewed. I wouldn't be surprised to find that some editors thought they had bought only first serial and some authors thought they had sold only first serial and retained copyright including the right to own and renew. Be interesting to see some fan fic published based on say H. Beampiper stories currently on Gutenberg and test who has current rights to write in those worlds.

One of the arguments for limiting copyright duration is the problem of finding the rights holder(s) at a subsequent time.

Some would say, and I might be one, that society grants copyright - monopoly - to promote the public welfare - else there are other issues indeed. See e.g. Lotus and so it goes lo these many years.

If there be no system of recording for copyright, as indeed there is not today at least in the United States, then perhaps the majority of copyright must invariably descend into uncertainty over time (even in high profile IP e.g. putting together a bundle of rights for a movie with merchandising tie-in based on a popular work by a living author can be difficult as bits and pieces of the rights can be in different hands).

In that event improper use of DMCA may be the only possible use in the corner cases (is the DMCA vague in the corner case?) and so ought to be forgiven along with uncertainty by the electronic host as to what may properly be offered to the public. Controversy is then all to the good in leading to a proper resolution of the issue for the present and so ought to be applauded all around.

I have an odd question. If I, writer and "owner" of copyrights, decide that I want the works I have written to go into the public domain upon my death, can I do that? Can I write it into my will and will that be honored?

Lizzy #344: Might I point you to Neil Gaiman's site where he's been commenting on Literary Estates.

lizzy l,

I have an odd question. If I, writer and "owner" of copyrights, decide that I want the works I have written to go into the public domain upon my death, can I do that? Can I write it into my will and will that be honored?

apparently dave sim & gerhard (creators of cerebus) have done something similar. perhaps googling on them will yield something.

Thank you!

Jim, #326, I don't pay taxes on my real estate. I'm totally and permanently disabled and make less than the city's limit on income and own a lot less than their limit on stuff. Most of the governments around here do this for the disabled and elderly.

Greg@266:

I think it's safe to say that Cory's reputation as an author is based on his skills as an author and his willingness to embrace a more relaxed stance on the rights to his work.

My high opinion of Cory as an author has nothing to do with anything but his work. "Themepunks" and "Anda's War" and "When Sysadmins Ruled the Earth" and Down and Out in the Magic Kingdom, among others, are beautiful works, literarily and morally. My love for him as an author is based there. His politics (as I understand them) are sometimes congruent with mine, sometimes opposite.

I don't have to agree with Heinlein's crackpot libertarianism or tolerance for parent-child incest to love the author of "Waldo" or "Logic of Empire" or The Start Beast either.

Patrick@257:

I feel uncomfortable criticizing Cory here, for some of the same the reasons that the characterizations some (including myself) have made of some of his arguments and rhetoric make you tired. (By now, you might have advanced to pissed, and I wouldn't blame you.) On the couple of occasions he and I have had contact, he's been a real nice guy, which adds to my unease.

That said, I think that strain of crackpot libertarianism runs straight from Heinlein into most (nearly all) of his literary descendants, including Cory. It's a politics which makes for some wonderful stories to tell, but also can lead to problematic real-life ideas and actions, especially when it's hyped up with market fundamentalism.

Specifically, I think people like Pournelle (ye gods! Am I agreeing with +him+?) have a valid concern when they claim Cory's "business model" (a phrase I hate more than most, but not so much as I hate "business rules") might, in the short term, work for Cory and a few others, but might in the not-so-long term do enough damage to the business to make it impossible for them to make a living.

If Cory were a socialist (which he's not), and if he had some other solution for keeping writers fed and housed and clothed, I'd be less critical, but he's not and he doesn't.

I know the publishing business much less well than I know the music business, and I know arguing from analogy is fraught, but I'm not seeing careers for musicians who aren't ready, willing, and able to perform throughout their lives. Maybe that'd be a good thing, and maybe market conditions leave no choice, but as an FDR/LBJ socialist, I don't think market interference via copyright is unthinkable.

John A Arkansawyer (#349): I don't always agree with Cory, either, even though I have many areas of agreement with him.

However, I don't think that his model of freely distributable e-texts (when so chosen by the author) is likely to lead to pixel-stained technopeasant wretchdom, even if e-books do become the primary mode of reading (and I sincerely doubt that they will any time soon).

He's gone into more detail on various pragmatic, quite quantitative measures of the value of free samples in this Locus article.

Now, for my perspective as a reader:

Having e-books I can load on my Palm TX is great. I have literally scores of books clipped to my belt, and can choose to flip between them at will; each one will even save my place automatically.

The vast majority of these e-books, I have paid for. (The rest were available for free through Baen's Free Library or the CDs bound into some of their hardcovers; even in some of those cases, I've bought the e-book.)

A similarly vast majority of these are books I own in another form, often more than one. I have, for example, four copies of The Curse of Chalion: a hardcover (signed, even), two mass market paperbacks (one the "keeper", the other the "loaner"; the latter is a later printing without the inner cover that has the hc cover art on it); and the e-book.

I've read that book many times; once in hc, several times in mmpb (particularly as "reading in bed" books), and I've lost count of the number of times as an e-book.

I've read e-books (either free, bundled with another book I've bought, or just bought "on spec") and then later gone out to buy the dead tree edition.

As it stands now, not having an e-book available makes me less likely to want to own a paper copy; if I have to mediate all my reading through that physical object, why not let the nice librarians down the street store it for me?

Unlike Cory, I don't have a visceral hatred for DRM. I don't like it, and I avoid the more intrusive versions, but I can live with it when it's as light-handed as Apple's iTunes DRM (5 computers + any number of iPods) or the DRM that eReader (formerly Palm Digital Media (formerly Peanut Press)) uses, where the unlock code is the credit card number I bought the book with; I don't have to go through hassles to "activate" a new device if one breaks. (That said, Baen's lack of DRM makes me much happier to buy e-books from them.)

I'm quite unhappy that of the five Hugo novel nominees, only two (not including the winner) are available to buy as ebooks.

I'm particularly unhappy that there's a specific common thread among the other three, which has resulted in me not being able to buy quite a few recently published books as ebooks, including several of my favorites. (I would have bought at least one of the three for sure, and probably at least one of the other two.)

It hurts me as a reader, and I think it hurts the authors and publishers; I'm trying to give them money for something they're not selling! I can easily think of a dozen recently published books that I would buy as e-books right this minute, at $10 each (or even $25 in the case of books not yet out in mmpb), if they were available.

Aside on your music analogy: ah, but "throughout their lives" implies that terms like life+50 or life+70 (or the far too likely life+90 that we'll get when next Steamboat Willie nears the public domain) are overly long. Certainly they won't make dead musicians sing or authors write any more, "Unforgettable" and the Dune books notwithstanding.

Some early films only survive because, at the time they were made, every ... single ... frame had to be individually copyrighted. So the films have been reassembled by taking those copyrighted images, each one printed on a separate sheet of paper, and transferring them to film.

At another point in history (and quite a recent one, too), the studios were burning the original negatives of films in order to recover the silver.

My position is that the artist has the right to determine where and how his or her works are to be made available. If that means giving it away, that's the artist's choice. If that means never giving it away, that's the artist's choice too. There isn't any contradiction: artist's choice rules.

As far as terms of copyright go, my opinion is that the term should be for 24 years (that's how long a deal with the devil traditionally lasts), with renewals by the original artist trivially easy to make for the duration of his or her life, plus one more renewal of the same 24 years by one of the artist's heirs after his or her death.

For corporations and anonymous works, 50 years and that's that.

But that's just me. Opinions vary.

When I'd recovered from the throes of putting together Ansible 242 -- including a necessarily brief summary of the SFWA/Scribd affair -- I explored Scribd.com further. How on earth does the site remain in existence when it offers such notoriously hot properties as (what certainly seems to be the full text of) Harry Potter and the Chamber of Secrets? Andrew Burt's best strategy would probably have been to tip off J.K. Rowling's agents and await the nuclear strikes.

#349: The problem I have with the "if Cory's giving it away, then how I can possibly make a living" argument is that it implicitly assumes that all creative work is fungible, and readers choose works to read based strictly on price.

Maybe it matches somebody's book buying experience, but it doesn't match mine. If you're really hankering for a Jerry Pournelle work, then a Cory Doctorow work is unlikely to be a satsifying substitute, free or not.

(As an aside, I don't know that I would have bought Accelerando if it hadn't been for the PDF. I was pretty much hooked instantly and my natural reaction was to go buy the dead tree version.)

As for copyright, I think its intent has shifted over time. IIRC, the original intent was to provide a limited monopoly for creators to profit from their work to spur the creation of new works. Most of the arguments I hear supporting extensions of the term of copyright, these days, have to do with providing the descendents of creators a continuing source of income. (i.e., reducing the incentive to create new works. OTOH, given who ends up with those rights sometimes, I'm not sure there would have been new works anyway.)

OTOH, I'm curious about what happens to organizations like the Kurt Weill Foundation, or the Rodgers and Hammerstein Organziation as the works they control out of copyright. Both groups do significant research and restoration of their respective works. It's hard to see that happening as much when anyone can put on Three Penny Opera or Oklahoma without profitting KWF or RHO, respectively.
(This is not an argument for permanent copyright, BTW. Just because they do good with the money doesn't mean that it isn't still about providing descendents with money. I'm just saying all is not always rosy in a land where copyrights expire.)

Personally, I'd like to see Congress pass a law saying that they won't extend the term of copyright any more. (I know. It doesn't do any good. But at least they'd have to repeal this law before extending again.) The ability to extend the term of copyright just before "Steamboat Willie" goes into the public domain seems like a terrible loophole. (Yes, I know. It's just the normal working of government.) We don't have permanent copyright (as the Supreme Court has ruled), but it feels like we have effectively the same thing.

Jerry Pournelle has put his thoughts (which are not exactly agreeing with Cory) up. I think it is well worth a read, even if you disagree with parts of it.

The problem with Cory's view is that it only works so long as ebooks are a minor part of the market. Once you start getting ebooks becoming more important, and I think that is the way things are going to be, then having your work readily available electronically for free does make it tricky to then start charging for it.

Kelly@338: ...there is a whole spectrum of possible opinion that can treat copyright in terms of something owned rather than as services rendered that doesn't fall neatly into the position of advocating for copyright permanence. I could for example feel ownership of my books and short stories rather than think of the writing of them as a service I should be compensated for and, at the very same time, not believe that I should own them permanently in the sense of being able to pass that ownership on to my descendants ad infinitum.

That isn't a spectrum, though.

(1) There are some folks who are quite willing to give away the rights to their works as soon as they write it. They might be using it as a loss-leader, free samples, or as a way to build reputation and make money some indirect way that is not through the sale of works. Or they might be contributing to somethign like wikipedia.

(2) Then there are folks who want some direct compensation for their labor. (A) They'd be willing to create stuff as a work-for-hire as long as they get a good salary. (B) Or, they'd be willing to create stuff if they got 42 years of copyright protection. (C) There are a number of people who would be willing to create stuff knowing that it might enter the public domain while they are still alive. (D) Then there are those who cannot bear the thought of their creations entering the public domain while they are still alive. These folks would be willing to create stuff only if copyright terms lasted until they die, so as to prevent them from seeing their works enter the public domain while alive. But once dead for some period of time, they would be willing to allow their works to enter the public domain.

(3) Then there are those who insist that copyright should last forever. These people literally want copyright to last for perpetuity, forever if they could, but forever less one day if some annoying little restriction in the US constitution gets in their way.

There is no spectrum in the basic expectations of copyright terms. It is either (2) or (3). It is either a service or a property. It is either temporary or permanent.

The only spectrum that occurs is from (1) to (2A) to (2D), which is the range of bids that individual authors would want before they'd be willing to write. The folks at (1) don't need a copyright and will find indirect ways to make a living. Other folks might decide they can make money on a term as short as 28 years. Others want 42 years. Others want 56 years. Others want terms that last for Life. Others want Life+15.

About the time that you hit a term of Life+50, however, you're really talking about a (3) mentality trying to pose itself as (2). terms lasting Life+50 or longer are viewing copyright as permanent property, trying to make it last as long as a family farm being passed from generation to generation.

But the spectrum is in the "bid" put in by the various competing authors for how long copyright needs to last for them to be willing to provide the service. At which point it is a "service" model, not a "property" model. It is a bounty hunter model, and the goal then is simply to find the lowest bounty that will still encourage enough authors to write.

Me, there are some works that I find are best suited for giving away. My perl programming book is freely licensed. Someone can fork the work if they wanted to right now while I'm still alive. I don't have a problem with that. I spent a couple years working on wikipedia knowing full well that my contributions could be completely unrecognizable in a day (and they sometimes were). There are other works which don't work well for me on that model. I've kept my novel under All Rights Reserved. But I'd be fine with a copyright term of something like 42 years. If you write something and spend 42 years trying to sell it and can't make a profit, then it probably isn't a profitable book, and another 50 years of copyright monopoly isn't going to help.

But even that "spectrum" fractures along one main fault line: Those who don't want copyright terms to expire while they are alive. And those who don't mind if people modify their works while they are still alive. Wikipedia might actually be a major shift in changing perceptions about letting someone else modify your work. At which point, maybe it will change the public's perception about copyright terms that are Life+N.

Jim Macdonald @ 351

And what side does the Devil come down on in this debate? I bet we could start a whole new flamewar on that question. My answer is the one with the most details.

John A. Arkansawyer @ 349

I appreciate your concern, and I don't believe it's misplaced. However, one point that Cory is making hasn't been made forcefully enough: this problem isn't going away just because we ratchet up copyright enforcement. Even if someone were to release millions of bots on the net to cruise around looking for infringement and writing takedown notices on the spot (what does perjury of a software routine consist in?), the piracy problem wouldn't be solved, just escalated, and the resultant chaos would probably severely damage the publishing business in general. We need some sort of consensus solution that reduces the desire for obtaining pirated works.

One thing that maybe the SF community needs to understand is that the audience for this genre is much smaller than for blockbuster best sellers, and at the same time more knowledgeable about the work and the authors, and more likely to be interested in ebooks. Moreover, the major publishers in the field are not necessarily owned by giant distribution conglomerates whose interest resides primarily in milking long-term sales of a small number of works, using the other works as pawns in the game while doing so. I don't think any set of copyright rules is going to be one-size-fits-all for the entire book publishing industry, let alone include all media together.

Greg, I think we're talking past each other because we have a basic difference of opinion in the definition of terms. I don't agree with your definition of service vs. property. I don't agree that impermanence = service or that property = permanence. You can say that it's the same thing as often as you want, it's not going to change the way that I feel about the terms. I've written books both in a typical large New York press fiction context and as work for hire. To me, they're fundamentally different things and I have a very different sense of ownership about the two things. The work for hire model is (for me) a service model. The other is (again, for me) a property model but one that I view as impermanent. Now, while that means that functionally the way I would like to see copyright work is closer to your services model above, I get there by a very different path of reasoning and with a very different emotional context because property and service apparently mean very different things for me than they do for you.

Dave Langford @352:

Because the DMCA gives them protection from prosecution as long as they take suitable steps once they're notified of any problem.

Now, the fact that they've apparently not been notified of HP-related copying _is_ surprising.

Kelly McCullough @ 357

Good point about the distinction between work for hire and work for self. I think the differences between those two for the creator warrant differences in the way they're treated by copyright policy. Expecially if we think of copyright as a mechanism for encouraging creation; work for hire, because it is motivated primary by profit for the hiring entity, will not be as encouraged by copyright as will work done for the direct gain of the creator.

FrancisT: Maybe there's something specific to Cory's own arguments that assumes or requires the freely circulating stuff to be a small part of the whole, but that's not innate to the principle of putting something up for free and letting it roam so that folks sample it and maybe feel motivated to pay. Jonathan Coulton demonstrate the principle for music - vastly more free copies of his songs are out there than ones that people paid for, but he's selling enough to make it worth doing. My occasional partner in crime, I mean, game writing, Greg Stolze is doing fine with a ransom model, where once a designated amount comes in, the work goes up for free download for all - it's not that he's getting rich off it, but he's making money to rival or beat what he would with more conventional contracts in our field, with a lot more creative freedom. And it goes like that.

In Greg's and my environment, by the way, something interesting has been going on for several years now. The development of a robust market for electronic sales has been of help to some professionals, yes, but what it's really done is nurture the field of talented amateurs. People who don't want to pursue this kind of poorly-paying thing as a day job can nonetheless put the sort of time and effort a really serious hobbyist does into their work and get more than sufficient compensation for it. A lot of folks are making a few grand a year for their effort, and therefore able to feel comfortable keeping at it. I believe this is also the case in music, and I like it.

Broadly, this sort of strategy depends on cultivating a quality in customers that (at least) American business has largely shunted aside in the conservative movement era: appreciation. Sure, it's got its risks, but then so does the favored corporate alternative, dependence, and so does any other option.

Kelly@537: The other is (again, for me) a property model but one that I view as impermanent.

By what reasoning is it temporary?

Or, to put another way, by what measure do you determine when you would allow it to enter the public domain?

When does the transition occur and why?

Bruce@359: Good point about the distinction between work for hire and work for self. I think the differences between those two for the creator warrant differences in the way they're treated by copyright policy.

It need not be if enough people are willing to create new works under a fixed copyright term, one that might expire while the person is still alive.

Copyright doesn't have to satisfy everyone or every author, it only has to satisfy enough.

I don't know what term would be long enough to get enough authors to write, but I think that's mostly because there hasn't been an honest and frank discussion among the public as a whole. The US has a history that shows 56 years is plenty (the US term until 1976) and 42 years might be enough too.

Bruce at 360:
Soemthing I just posted over at Sclazi's site

If e-priacy is considered as no big deal and if, as [Pournelle] and I both think, eBooks are the way forward then one clear result is going to be the impoverishment of authors. I detest DRM with a passion and I, personally, am willing to pay for ebooks (I pay a minimum of $15 a month the Baen for example) but if there are only a few thousand who pay and tens of thousands who read and don't pay then authors will have little or no incentive to create. And that would be a bad thing.

---

In general I think that people WILL pay $4-$7 for ebooks and that authors and publishers in the near future can make a living approximately as good as they do today based on ebooks priced in that range, it is possible they will even do better. However in order for that to be the case we need to limit the number of 'free' reads to approximately the same number of 'free' reads we have today. Charlie Stross found statistics that say that on average 4 people read every book sold which implies that authors/publishers can afford 3 free reads (whether 'pirated' or legal) for every sale.

If an entire generation gets out of the habit of paying for content then that model isn't going to survive because unless you can charge advertisers around a dollar for the total page views in an electronic book we cannot move to an ad supported model. This in turn implies that we move back to a renaissance "patron" model of content creation. Copyright was deliberately designed to help us AVOID that model because it has obvious limitations and I really hope we don't go back there.

I like the idea of part time writers / content creators, but I think we also need people who can actually make a decent living at being pure writers, and simply from an incentive POV it's nice to have JK Rowlings around with mucho big bucks too. I'd hate it if we never get more than a handful of amateurs and part-timers any more.

Likewise I really like the ransom model, it has worked wonderfully for Lee and Miller for their new book "Fledgling" and I can see it working for others. BUT. It seems to me that the ransom model doesn't help you get started, it only works once you are (fairly) well established. And it is a complete bugger WRT to the lack of residuals and forces the writer to KEEP ON WRITING. In other words it tends not to give much of a pension. Many people, it seems to me, are unwilling to work until they die and most would prefer to have some time in retirement (or some cushion of savings for illnesses etc etc). In the past successful authors got that mostly through residual royalties; in the "most things electronic are free" model there won't be any residual royalties. This means even talented writers are likely to look at the incentives and decide they'd do better at another job.

FrancisT: While someone like Cory started off with advantages, others have had fewer (like John Scalzi) or basically none (like Jonathan Coulton), and yet have had success building up a market as well as an audience. Heck, anyone with a Making Light comment history would have a fine launching platform. It's not that there are no challenges to this, but I think the barriers are being overstated by people who haven't yet really watched it in action.

Greg, this is going to be quick and dirty because I've got deadlines and we're into my daily writing time, advance apologies for typos etc.

By what reasoning is it temporary? Let's call it artistic taxation--no it's not a straight map, and FSM knows it's a lousy way to sell the idea, but it'll do for now. I don't believe in property without obligation which is the reason that I'm perfectly happy to pay income tax. For the common good the body politic levies taxes--takes a percentage of my money (read that as property) and I'm fine with that. Likewise, for the common good I feel it's perfectly reasonable for the body politic to put a time limit on my copyright--takes a percentage of my written works (read that as property). The percentage and methods are different but the idea's the same, the common good is more important than some of my property rights.

When does the transition occur and why? The why is addressed above, at least in sketch. The when is a matter for negotiation. I like life because I'd like to be able to retire someday and it would be nice to do so on the fruits of my labor rather than on someone else's nickel, but I could be convinced that some finite term less than life might be a better answer. I'd also like to see some mechanism to provide for minor heirs and destitute spouses.

Here's a quick scenario for why I could see an argument for some number of years past death under certain circumstance. Say for example that I sign a contract for a book that turns out to be a multi-million seller over several decades, but that I don't know it at the time so I take a very small advance. Say that I am thirty with a non-working spouse and three minor children. Now, ten minutes after I mail that contract, I am hit by a bus and killed. If I had lived, the royalties from that book which is, at this point, only on its way to print would have supported my family. It is not unreasonable to feel that even with my untimely death that same support should be there for my family. Again, I'm open to a variety of ways of seeing that happen.

Oh, and for copyrights held by corporations or foundations, I'd like to see a flat time limit from the grant of copyright, something in the neighborhood of 20-80 years, though I'm sure I could be convinced to make it shorter.

I hope that answers the question.

FrancisT: To be a bit more specific:

If an entire generation gets out of the habit of paying for content is the part that's wrong. Simply wrong. In fact, there's an audience out there quite willing to pay for stuff they can gt free, for a variety of reasons, starting with "Hey, I liked this, sure, I'll send you a few books since you made it easy for me to do so." Look at sales at the iTunes store. No matter how much Cory hates DRM, the fact is that a lot of people were and are prepared to accept some limits on what they can do with a purchase and still shell out money to get legit copies of tunes (and TV shows, and whatever) they like.

There are, I suppose, dedicated lifestyle pirates who won't ever pay for something they can steal as a matter of principle. But there are far more folks who can and do pay when it seems worthwhile to them. The task of a creator in such a market is to build the personal and creative presence that motivates others to send money their way. And quite a few are in fact managing to do this, with or without any prior commercial/public history. It takes effort, sure, but it pays off.

Kelly McCullough (#365): I would be happy with a copyright term of "life or N years, whichever is later" where N would also apply to corporate copyrights. 40 years might be a good number for N.

In your "hit by a bus" scenario, your dependents would have a good 40 years to make money from the copyright; in the alternate universe next door where the bus missed you and you lived to be 85, you'd have 55 years to take advantage of it. Call it a longevity bonus. If at 80 you wrote a sequel, then you'd have those five years and your heirs would have the remaining 35 years.

I buy music off a website which allows me to listen to the entire album, free, whenever I want to, and allows me to set the price for the music I am downloading. I pay as much as I can afford because I want the artists to keep on making music, and the easiest way I can encourage them is to pay them for what they've made.

(Ah, forgot to add that the business is set up so that half of what I choose to pay goes to the artist. It's much easier to pay when you know that a fair bit of it is going to the people who actually made the music.)

Nancy #368,369:

I know the site; it's been responsible for a couple of major classical discoveries on my part. Is there some reason you're not naming them?

Further to Christopher Davis @ 350:

Similarly, I have several dozen e-books on my Psion (a large handheld with a useable keyboard). This goes with me everywhere. With enough different books on it - bought from Baen, from the Baen Free Library, from the Gutenberg Project, etc. etc., I always have a book to read when I want it. Yes, I prefer dead-tree versions to read, but I can't carry many of those around with me.

Most of the e-books which I have bought, I also have in paper format, but I've bought them as e-books as well. If I read a book as a free e-book and I like it, I'll go buy it in paper format, if available - new, to ensure the author gets some money from my purchase - and may buy it as an e-book as well. If I don't like it enough to buy it, chances are that browsing it in a bookstore would not have drawn me sufficiently to buy it at full price, so I would only have read it if I could (a) borrow it or (b) buy a cheap copy in a second-hand or charity store - so how's the author losing out?

Recently, I bought as e-books some books I wanted but which are not presently in print. If the e-books had not been available, I would have bought expensive second-hand copies - for which the author would have got nothing.

And the "ransom" model can certainly work - Sharon Lee & Steve Miller's "Fledgling" had hit their target for the whole book by the time about a third of it was available, if I recall correctly.

FrancisT @ 354 "Once you start getting ebooks becoming more important, and I think that is the way things are going to be, then having your work readily available electronically for free does make it tricky to then start charging for it." - Only if you believe nobody is willing to pay anyway - there are people who will pay even though it's free, to say "thank you" and encourage production of more of what they're enjoyed.

Kelly@365: For the common good the body politic levies taxes--takes a percentage of my money (read that as property) and I'm fine with that.

Sure. I pay income tax, property tax, and sales tax, among others. But property tax on my property isn't the same as the government taking my land. And an excise tax on my car isn't the same as the government taking my car.

Under copyright, you get exclusive rights to the work without paying the government anything, and then at some point, the copyright expires and it becomes public, again, not paying the government anything.

So, I don't know how you're mapping the tax metaphor onto copyright. Obviously, you'd pay income taxes on any income you made through your copyright, but when the work enters the public domain, that doesn't look anything like a tax.

Kelly@365: Now, ten minutes after I mail that contract, I am hit by a bus and killed. If I had lived, the royalties from that book which is, at this point, only on its way to print would have supported my family.

In this situation, a copyright of a fixed 40 year term would be better than Life+20. This is one of the reasons why I prefer a fixed copyright term, rather than Life+N.

For an author who creates something at 20 years of age, and lives to be 73 before dying, they've already gotten 53 years of copyright protection, so if the term is Life+N, then only a small value of N is needed. Maybe 15 years or something.

But for the guy who is 20 years old, writes the worlds next best award winning, best selling novel, and is hit by a bus the next day, Life+15 doesn't quite line up with a proper reward.

Which is why I lean towards a fixed term of, say, 40 years from date of publication. a lot of people will die of old age before their works enter the public domain, but for the young author hit by a bus, he still gets a decent term for his heirs.

To handle the bus situation with Life+N would require something like N=40, which I think is too long. Especially when you start looking at the average author who writes early and dies of old age.

Greg, the money you pay in taxes is a form of property--the money itself is property that I give up for the common good, that's my mapping mechanism. As for the exact timing, I rather like the method proposed by Christopher @367 of life or fixed term, whichever is longer.

the money you pay in taxes is a form of property--the money itself is property that I give up for the common good, that's my mapping mechanism.

You have some land. You pay property tax (some cash) to the government. You keep the land as long as you want.

You have a copyright. ... What is the tax to the government?

Property taxes are usually used by the government to pay for things like public schools. I don't get where there is anything like a tax in copyright.

I'm missing something in your tax metaphor.

You have income, which is money, which is property. You give some to the government--a percentage. You have copyright, which is property, you give some to the government (the time after it's expiration)--a percentage.

I think where we're losing each other is at the idea that property = real estate. Property also = my t-shirt, my laptop, any number of things that aren't real estate, say for example money.

I think that the tax idea is this: it's great for the author's heirs to have the copyright -- as long as they're willing to pay Copyright Tax. If it's property, treat it as property.

At the very least you'd know who you have to talk to about getting reprint rights that way.

And if it's costing them money but not bringing anything in, there's an incentive to let something go into the public domain.

Greg, let's look at an example within our field.

With a 40-year term, Peter Beagle's A Fine and Private Place would be out of copyright, as would I See by my Outfit
.and The Last Unicorn would go out of copyright next year). Peter is not comfortable in terms of money (I know this from personal conversation), and the money from the books he wrote which would be out of copyright at this point under your scheme is keeping him from penury.

"Those who believe in courtesy to living authors" (to quote Tolkien) might like to make sure that living authors continue to get paid for their works that people continue enjoying. "Life plus something" (15 years sounds just fine to me) is appropriate. Especially since anyone could publish any sort of edition, with egregious changes, and call it "the author's preferred text" if it's out of copyright.

"This is the story of nine-fingered Frodo and the Ring of Doom."

Kelly@376: You have copyright, which is property, you give some to the government (the time after it's expiration)--a percentage.

Er, but, that isn't a tax. You're comparing it to a tax, but in almost every way you're describing it, taxes don't work that way.

First of all, the government doesn't get money when the copyright work enters the public domain. Second of all, no "tax" claims the whole of the thing being taxed. You're saying it's a percentage of the total time, but no tax lets you own a car for 5 years, and then the government claims the whole car. Even though, temporally, they get it for a percentage of the total time, and the governmetn gets it for a percentage of the total time, no tax I know of works that way.

It would be like the government saying that all physical property, land, deeds, money, cash, stocks, and bonds, are to be forfeited to the government after a person dies, and calling it a "tax" because the person got it for a percentage of time, and then the government gets it for the rest.

What you're describing isn't like any common tax I know of.

So, when I asked the question back at #361 about why you believe copyright isn't permanent, you said it was because you think of it as a tax. Could you answer the same question without resorting to the word "tax" and just explain functionally what you mean?

Tom@378, the point isn't to lengthen copyright terms until all authors make a living. The problem with that is that it assumes that duration of copyright is the cause of writing being a poor paying job. And you can come up with ANY duration and find some corner case where some individual fell through the cracks and why not lengthen terms a little more to help them. Writing is a poor paying job for most people for reasons that have nothing to do with term lengths.

Copyright is a bounty offered to encourage people to write. It is not a guarantee of a lifelong career.

Interesting points made here.

I'd like to point out that Cory has never said people shouldn't control the rights to their own works. He is a proponent of releasing works under creative commons as a means of self-promotion but he has never said that anyone should =have= to do this.

Oddly enough, this position is attributed to him time-and-time again.

Well, Greg, I may not owe the car to the government after five years of paying taxes on it, but if I stop paying taxes, aka registration and license fees (and in CA that fee is based on the value of the car, just like property tax is based on the value of the property) the car will be taken away because I failed to pay taxes.

I think I'm going to give this one last go and then give up here, Greg, because we are so clearly talking at cross purposes.

I'm not saying it functions exactly as any other tax works, I'm saying that in this model it's morally equivalent to a tax, i.e. I give up some portion of my property rights for the common good. In this case, the portion would be ownership of copyright after a certain amount time has lapsed. In this case both money and copyright are types of copyright that are surrendered for the common good. For the example;

Money=Property
Copyright=Property

Some part of the property is surrendered for the common good. In one case the portion is a percentage of the original total. In the other the portion is a slice of the time over which the property is potentially valuable.

The ultimate point it that I can both feel a property type ownership for my work and at the very same time feel that it is reasonable for me to give that property up after a set amount of time for the common good. Property does not equal permanence for me and impermanence does not equal service. If there is no way that makes sense to you then we are using words in ways which simply do not translate.

Tom, obviously current copyright law (along with other commercial realities) isn't serving Mr. Beagle very well, in terms of rewarding him for outstanding creative effort.

But consider. We've been in a boom of fantasy adventure on film lately. It seems quite possible to me that a freebie release of Last Unicorn from Mr. Beagle's own website or that of a fan might well have generated interest in, at a minimum, a PDF of the book's text with author's notes or something of the sort and quite possibly a print edition, too. This isn't entirely hypothetical: Daniel Keys Moran has built up interest for a continuation of his early series in part by just such means. Likewise, imagine some simple follow-up like "Hey, Bruce, we know you read the following short stories at Mr. Beagle's website. We're planning a collection, with this lineup. Would you like to preorder and get a bonus story/postcard of thanks from the author/something else?"

Some people who advocate this kind of creator-centric approach end up dissing publishers. Not me. I love good publishers, whom I think add real value to the works they put out, and I have a healthy respect for the challenges they face. Rather, I like t think of it as supplemental, expanding the range of low-cost, low-risk options to try in addition to pubishing as it are done now. It's not that there are big technical barriers to any of it, it's that it takes someone with the personal motivation to make it happen in a particular case, and the issues facing someone with work out of copyright aren't wildly different from someone with work in copyright but not at the moment super popular.

One key factor about the gift/appreciation transaction network is that it's very personal. Interest attaches to creators, and to a handful of others. And one of the worst sins is to look like one is mooching off someone else's actual creative effort. Knockoff editions, even when strictly legal, seem likely to have a relatively tough time with an audience accustomed to rewarding creators - the new edition would do well to buy in with some niftiness of its own that is itself a creative act, and lots of options for that are better done in cooperation with the original creator. This isn't to say that there'll never be room to crank out knockoffs and make a buck at them, only that it may actually be easier and more productive to do it other ways.

As for someone putting out hackwork and claiming "author's preferred text", that's fraud, and punishable as ever.

How is that fraud when the work is out of copyright, Bruce (at 384)? When it's not protected, AFAICT, anyone can do anything with the text, the characters in the text, or whatever.

I really like the idea of people being able to create substantively new works in a universe created by an individual author (Rowling, Yarbro, Bujold, Pratchett, whoever). There are many authors who have made significant fiction creations after (e.g.) Homer. When the author's still alive (or possibly recently deceased) it's nice to send an emolument that reflects one's debt to the creator. Not "legally necessary": nice.

And I am trying to work towards a society where "nice" is a default.

Tom 385: The false and misleading claim that it is the author's preferred text is fraud—against the buyer of the crap in question, not against the author. Without that false and misleading claim, I think you're right.

And to elaborate on your final point, I want to live in a society where courtesy, empathy, and kindness are not considered extraordinary virtues, but the bone of one's bone.

Tom, "author's preferred text" or anything like that is fraud unless it is the author's preferred text. You can say all kinds of stuff about out-of-copyright books, but when the creator's still around to give or withhold endorsements, not everything is fair game.

I strongly agree that rewarding creators is a good idea whether it's required in some situation or not, and like the growth of a culture in which that's taken as a good thing and a consumer's responsibility to those who make the stuff they like. "Thank you" is a good thing to say, a good thing to hear, a good thing to be around; thanks expressed in cash are also good. And none of that is sarcastic - I genuinely do like it.

in the last go-round around here with copyrights, i came to the same conclusion as christopher davis: life or n years from publication, whichever comes last.

i think many people would agree that it seems wrong to have a copyright go out of the author's hands before her death. not only that an author should be able to be supported by a successful book for his whole life, but also because the author, i think, shouldn't have to suffer through (potentially) big-budget, legitimate travesties of her work (unless it was work for hire, which comes with the territory).

yes, after a certain point, a creation becomes part of the culture, & people who grew up with these cultural myths should be able to play in them. travesties are fine, good, & maybe necessary, eventually. old plots deserve to get looked at & reworked in subsequent generations. but i don't think we are too impoverished, or cheated out of too many new & original works, if we let a creator keep control over his universe & characters while he's still alive.

greg, you don't seem to be willing to consider this argument as different from perpetual or near-as-makes-no-odds copyright. i guess life or n is too much like property & not enough like bounty, & you're really married to that metaphor, & that dichotomy. i can see that you put a lot of work into it. but maybe more flexible thinking is called for if you want to convince people.

It's interesting to me, looking at this thread, just how much the phrase "instant gratification isn't fast enough" springs to mind. It took SFWA three days to come up with a full and serious response -- that's really not that long. And people were claiming that they hadn't responded quickly enough on the very day when this thread started, which strikes me as just a bit of an over-reaction.

What happened was definitely Bad; claiming that a response to that Bad has to have happened as soon as I hear about it is also Bad. It is much more fun than waiting for cooler heads, however.

miriam, I consider the "An author shouldn't have to suffer seeing their creation mutilated while alive" to be a bounty of a certain price. It was the "tax" thing that I don't understand.

It doesn't have to be a fixed term to be a bounty. To arrive at some amount for a bounty, one would have to take bids from various bounty hunters able to do the job. Your bid is Shortest-of-Life-or-N. Others might bid Life+15 or fixed 40.

Then the thing would be to look at all the bids and see where the point is that would get a sufficient number of authors to create new works. Not every bid will be accepted. It isn't pick the lowest bid. Or pick the highest bid. But pick the bid that will have enough authors creating new works.

The thing is that any term involving "Life" isn't looking for a potential amount of money comesurate with the labor put into creating the work. It's more a matter of the author could not bear to see anyone do anything with their work and would therefore refuse to create anything unless guaranteed that no one could do such a travesty until after they die.

It's similar to Moral Rights which allows an author to control how their work is used even after they've sold all other rights to the work. It has nothing to do with monetary compensation, it has to do with author gut reaction. It is still a bid, but it has to do with author ego, not author pocket book.

I'm no fan of moral rights, and I have no requirement that every authorial compulsion must be honored in copyright. But it is still a bid, just driven by a different motivation.

Hm, on a slight tangent, it just occurred to me that Moral Rights is circular logic. Authors want moral righst because they fear that if their work is used to advertise some unseemly product it will look as if they are endorsing that unseemly product, therefore moral rights allows the author control of the work even after they've sold all other rights to the work.

But it's circular because they want moral rights because they're afraid it will look like they endorse the unseemly product. But they can only endorse the unseemly product if they have moral rights. If they don't have moral rights, they can't endorse the unseemly product.

That's interesting.

There are ways of using current income to buy a guaranteed future income.

They're called pensions.

Relatively few books have a long life in the market needed to replace that.

Is a life-term going to change that?

Post-mortem copyright does protect publishers. It allows them to be sure of the monopoly they've just bought.

Now, a company such as Disney does own a lot of long-life works, and they have ways of exploiting that long life. Disney regularly re-releases its animation to a new audience. I would suggest that they could get useful protection from trademarks, which can be maintained indefinitely.

In my more cynical moments, I wonder if the corporate interests promoting longer copyrights are using a false advantage-to-authors argument because it's cheaper than paying higher royalties during the usually short commercial life of a work. It does seem that the film industry is in some ways more honest: they don't try and fob off scriptwriter with vague handwaves about far-future royalties, and they pay cash now, with an effective trade union watching.

So I don't think "Hollywood" copyright has much relevance to the corporate/creator relationship in other fields. And book authors don't have the support that script authors do.*

And such things as the nature of the US Healthcare System affect all emploer/employee relationships, possibly making US solutions misleading in other markets.**

I recall it being suggested that Dungeons and Dragons was a patentable invention. It's probably a good thing that there was no patent, because, quite often, the early patents in a field have very broad scope. But the relatively short life of a patent, compared to copyright, is intended to balance that, and further, narrow, patents on "improvements" could have been made on later versions of the game, and by the publishers of competing games. TSR could have patented their use of "funny" dice. GDW could have patented Traveller's use of ordinary dice (or maybe not, but look at computer patents for ignorance of prior art).

My approximate conclusion is that the pressure for extending copyright is arising from interests which have little to do with royalty-funded writer-publisher activities, and few authors ever benefit from even a lifetime copyright. Some form of life+N term protects publishers against untimely death, but even Berne Convention life+50 may be too long.

And there are other forms of enduring IP protection available to protect corporate-owned works of significant value.

* On what I've seen $FOO Writers of America is only interesting in earnings as a minimum qualification for membership.

** Which may explain the lower profile of writers' organisations in Europe: there isn't the same need for emergency medical funding as in the USA, which is something the SFWA is praised for several times, up-thread.***

*** Agents, collectively, may have dropped the ball on some things, such as the grab for electronic rights (which seems to have started in journalism). Film and TV have had writers' strikes--will the writers of books ever get that organised?

Tom, I'd like to split a hair about desirable response to bad stuff. I realize that fine distinctions are alien to this discourse, but bear with me. :)

I think that a full response to a serious problem (or one that looks like it may be and you aren't sure yet) should take a while. Investigate, figure out what has to be fixed, what has to be done to keep it from repeating, and so on, and then tell the world. This is best moved right along ut not rushed too far.

On the other hand, an initialinitial

At least that's my take.

Greg, I think you're stretching it with the "unseemly product" argument on Moral Rights. Surely that's a general right of any person to have some control over what their name and reputation is used for.

Now, one might imagine Starship Troopers being blurbed as "the natural successor to Mein Kampf", but it's possible that wouldn't even need the concept of Moral Rights for Heinlein to have stanmped on it. Defamation would be my guess.

What I've seen is "Moral Rights" giving credit to authors who would otherwise be have been hidden by a house name, or other masquerade. And some of that which I have seen is damn fine writing.

Dave@393: I think you're stretching it with the "unseemly product" argument on Moral Rights.

In Europe, Moral Rights are far more powerful than in the US. There was a case in some European court where an artist created some work, sold the rights to the work to be used on some advertising poster, and the poster was displayed in or near an adult video store. The poster had nothing to do with the adult store, but it was nearby. The author used his Moral Rights to the work against the store that had purchased the rights to his work and forced them to take down the poster of his work.

I can't remember the details of the case, and I may have fubared some of the ones I mentioned above. (It's way too early in the morning right now.) The gist of it was that the reason the author was able to invoke moral rights was because the adult store was unseemly and the author argued successfully that having his content near the adult content would reflect poorly on him.

In the US, moral rights are pretty much limited to certain cases of attribution. But in Europe, they have a bit more power. I also believe that the power of moral rights is fading somewhat in Europe, but its still stronger than here.

A development of related interest. The Scribd.com reaction to people using Scribd's own "groups" facility to tag copyright violations is ... to take down all such groups. Like other group members, I received a longish email about this from Scribd: it's been posted to the BoingBoing thread.

Although the message says that documents tagged in the offending groups have been removed "As a gesture of goodwill", this does not (yet?) seem to be true.

#395 - In what is possibly the weirdest twist for us at Ray Gun Revival magazine yet, one of our issues, #16, was wrongly added to the two copyright violations groups yesterday afternoon.

I first sent in-Scribd messages--if that's not a feature name, it should be!--to the Admins for the two groups. I also copied an e-mail to Jason Bentley, Director of Community Development.

What he told me mirrored what Jared wrote:

For example, it would not take long at all for some joker to add every document on Scribd to the copyright violation group. What would we do then?

As the document owner, I should have theoretically been able to see all the groups the document belonged to, and removed it from groups where I didn't want it to reside. However, I didn't see the X by the two copyright violations groups.

Jared wrote:

I have since been contacted by users who asserted that some of the documents which were in the group were their intellectual property and were not infringing.

Once again, one of our documents was caught up in shenanigans at Scribd, and once again Scribd worked with me quickly to rectify the situation. Jason responded to my e-mail immediately--from his iPhone!--and worked with me for the better part of an hour to rectify the situation. It is nearly eighteen hours later and I have not heard back from either of the two group Admins in question. In their defense, they may have gotten a flood of such messages, and when Scribd stepped in, I was satisfied, so no message was required after that.

When our RGR Issue 16 was removed from the offending groups, it was a gesture of goodwill to us, if nothing else, and I thank Scribd for continuing to stay on top of a spunky young community that still appears to be flexing its abilities and limitations.

Johne Cook
Overlord, Ray Gun Revival magazine

Greg @390. One last time.

The primary reason I used the tax analogy was to show that there are circumstances under which people are willing to surrender property for the common good. One of those is taxes. For me another is copyright. That's pretty much the sum of the comparison–to point out that for many, property rights are not absolute. In the case of copyright, not absolute over time, i.e. impermanent. In the case of taxes not absolute over total income. I'm not saying copyright is a tax or that it is surrendered to the government, and maybe that's where you're getting hung up. I'm saying that the common good trumps many property rights.

I really don't like the idea of the stories I write being considered a service,* it makes me deeply uncomfortable on quite a number of levels. Property is much closer to how I view my work. I entertain this feeling at the very same time that I entertain the idea that my ownership of my work is only for a finite time because the common good demands an eventual surrender of my work to public domain, and the idea that current copyright lasts too long.

You claimed that there were only two models: Property, which is equal to permanence, or service, which is equal to impermanence, and that everything else is a hybrid. I flat out disagree with the contention that property is permanent. I also flat out disagree with the idea that story creation is a service. This suggests to me that there is a significant flaw in your initial hypothesis that there are only two (non-information wants to be free) positions and hybrids of same. Your hypothesis simply doesn't map onto the way I think about writing.

In short, though that seems impossible at this late date, I disagree with your model. It doesn't work for me. I've tried to explain why, that hasn't worked for you. Perhaps the way we think about things like property, service, and permanence are so fundamentally alien to each other that we just can't communicate on the subject. That's okay, it happens.

*except work for hire, which is writing as service.

Tangent Warning

390 This statement of moral rights is flawed in the same way as is the earlier statement of the property aspects of copyright: It acknowledges only one possible reason for a position, and then argues that that reason is necessarily the universal and unacceptable motivation. In this instance, another reason for "moral rights" is to avoid perceived harm to artistic vision; yet another is to maintain the author's quality standards across a range of works. Neither falls within the reasoning presented in item 390.

391 note *** A "writer's strike" by freelancers in the US would violate our antitrust laws. Under US law, only "employees" are entitled to collectively bargain. Freelance writers are independent contractors by definition (except for screenwriters, who are employees by implicit exception to that definition, since they're doing work for hire), so they're not entitled to collectively bargain.

Thus, the answer to this is "Never, unless someone were to change the law."

394 If the case referred to here is the one I think it is, it was later overturned by the European Court of First Instance, and the description of the facts is inaccurate. I could be incorrect, though; it would be helpful if Greg would provide a citation to that decision.

397 What appears to be going on here is that the word "property" has different meanings in economics and and law. Copyright is a legal construct that has economic rationales and aspects... but it is not a pure economic concept.

In not-quite-contemporary economic thought, "rivalrousness" is an essential aspect of a property interest.* The short, nontechnical explanation of this concept is that a good or service is nonrivalrous — and, therefore, not economic property — if it is not consumed to exhaustion by use. That's why a physical copy of a book is property (when that copy is sold to an end user, the store can't sell that copy again to another end user unless the first end user returns it to the store) and, on this view, a copyright or electronic book is not.

Conversely, in law, property can be rivalrous... but need not be. One good example of this is the right to continued public assistance payments so long as the program continues unless the public assistance agency holds a hearing (which may be merely submission of documents) on continued eligibility. This is a notoriously tricky bit of doctrine that ordinarily takes several weeks out of the lives of law students, spread out across two or three years of the curriculum, before the light bulb goes on. (I had the dubious advantage of having already suffered that loss of time as a commanding officer before law school, so I sacrificed it to other issues instead.)

In short, this entire thread is based on incompatible definitions of "property."

* Current theory seems to be moving away from this, but it's still a raging argument at the cutting edge of economic theory. Some time in 2012–2015, this argument will start making its way into serious trade nonfiction; until then, we're stuck listening to papers at academic conferences and following footnotes in the Journal of Economic Literature.

C.E. Petit @#398

Thank you for the very informative note on "property." You've made the point about fundamentally different meanings of the word property in a way that really clarifies something I'd managed to identify in a gut feeling kind of way but hadn't figured out how to articulate. I'm going to bookmark your comment for future reference.

Ah, so, the only part of "tax" you're using is that you surrender the rights of your property to the Public Good. The lack of government receiving the "tax" was throwing me. Also, the passing of the total rights after you die, rather than some percentage of monetary value every year, pushed me further away from the "tax" metaphor.

So, you were focusing on the contribution to the Public Good.

And again, now that I understand a bit more clearly, I still say it isn't a tax. If it were a tax, then you could translate property for property. You could keep the rights to your work forever to your heirs if you simply paid some amount of dollars every year. But if all the major corporations could lock up their works for all eternity by paying a yearly tax, they would, and the problem with that would become immediately obvious. So, it isn't simply a matter of paying some generic "tax" to the public. At some point, you seem to recognize that copyright has to expire and enter the public domain.

What you're actually describing is charity, not tax.

My wife and I will probably will a chunk of our property to some charities we support. It is our property. But when we die, we'll pass some of it to charity.

You've stated a couple of times that you would feel wrong relating to your copyrighted works as service, that you relate to it as your personal property. Upon your death (or sometime thereafter) you will your property to the public domain.

The thing is that it still boils down into a "property" metaphor. You relate to it as a permanent property for as long as you live. After you die, you'll agree to will it to the public. You can call it a "tax", but you still relate to it as a property. It's just that you're willing to give it to the public after you die.

So, copyright is a legal fabrication. Without copyright, everything immediately enters the Public Domain, which means that there is no direct incentive for an author to create works.

To move the stable point from "authors don't create" to "authors create", the public is willing to play a game of pretend. The public agrees to pretend that copyrighted works are the property of the author for some period of time. This creates an incentive for authors to create.

Relating to copyright first as a property, and then the point where it enters the public domain as some kind of "tax", is turning the whole sequence on its head. It assumes that the work is "property" first, a thing that can be owned and controlled by its owner, and that copyright law is created as some sort of "tax".

That is simply not how it works. Without copyright law, works are abstract, not property. Ideas and expressions and stories and such can be passed from one person to another with no natural restriction, and the author's wishes are irrelevant.

But since this does not encourage authors to write, the public agrees to invent copyright law and pretend that the work belongs to the author for some period of time as incentive. But the incentive expires and then the work returns to its natural state of public domain.

To view copyright as a tax is to assume that the works are naturally property and to ignore the fabrication that copyright law creates.

The "tax" part is simply a continuation of the "property" metaphor, pretending that the natural state of property must some how be interceded by a government sort of "tax", that without this "tax", the works would somehow remain property.

Greg, no, that's not what I mean and there are quite a number of points of fundamental disagreement.

First and easiest to dismiss is this: charity is voluntary, tax is not. The fact that I'm perfectly willing to pay taxes does not make them any less involuntary. Likewise, I'm not suggesting that surrender of copyright should be voluntary.

Second you state that I see it as permanent property for as long as you live. Unless you have a very different definition of "permanent" from mine, that's an inherently contradictory statement. The duration of time of one human life is not equal to permanence, at least in my book. In fact it's not even close.

I could go on. I'm not going to, because it is very clear that I am not going to be able to make you understand what I mean. We were already using different definitions of "property, service," and "permanence," and now "tax" and "charity" have been added to the list of things we don't agree on. This conversation has long since stopped being productive. We disagree. Not only are you not changing my mind, you're now doing something that feels to me very like putting words in my mouth. I don't think that's your intent, but I find it offensive. Please stop now. Let it go.

Kelly, I wasn't putting words in your mouth, I was trying to tranlate them to something I understand. I think I understand your tax idea.

What I don't understand is how you justify the creation of copyright law in the first place. Without the law, works are public domain.

It seems that the creation of copyright has nothing to do with your tax metaphor. I assume at least because the tax does not occur until the work returns to teh public domain. But if there is no copyright law, works are public domain to begin with.

If the tax (or the contribution to the public good) occurs when the work enters the public domain, then wouldn't there be a greater public good if there were no copyright at all?

So I assume there is some other reason for why copyright law was created in the first place, independent of the tax that occurs when copyright expires.

CEP @ 3978:

Aren't there some ways in which copyrights and other types of rights in an intellectual property *could* be considered rivalrous, after all? I'm particularly thinking of the right to control the creation of derivative works, which impels Hollywood to pay (very few) authors considerable sums for the right to turn their work into movies. If any studio could produce an adaptation without licensing it from the rights holders, there would be no incentive to pay the creators anything, since some other studio could produce their own version at no such cost. There would also be the factor of whether the market could really support more than one adaptation of a given source at one time.

Or maybe I'm completely misunderstanding the economic meaning of rivalrousness, and it specifically includes consideration of markets and dilution of products within them. Or maybe that dilution issue makes this more properly a part of trademark law, which issues from different premises than copyright.

Totally tangential
#398
In not-quite-contemporary economic thought, "rivalrousness" is an essential aspect of a property interest.*

I would have said an attribute of a property interest for purposes of certain models or modes of analysis but not essential aspect for purposes of defining property. I am reminded that perhaps the best economics teacher I ever had began a course by suggesting certain economic terms were fuzzy - one of our classmates, with a graduate degree from Patrice Lumumba in the old days, promptly assured us there are indeed exact definitions which he promptly quoted - a number of us suggested we would give him lumps if he didn't shut up and generalize his analysis.[are pet rocks commodities for Marxists? How is the premium for early adapters explained e.g. iPhone or for that matter books: best seller or remaindered?]

The short, nontechnical explanation of this concept is that a good or service is nonrivalrous — and, therefore, not economic property — if it is not consumed to exhaustion by use. That's why a physical copy of a book is property (when that copy is sold to an end user, the store can't sell that copy again to another end user unless the first end user returns it to the store) and, on this view, a copyright or electronic book is not.

I would have said that a strong but not necessarily conclusive case can be made that nonrivalrous goods ought properly to be public goods - as the public radio public television model - because the market will undersupply - free rider problem et. al. - but never not economic property compare eastern riparian water rights - presumably nonrivalrous when mistakenly considered non-consumptive and western appropriation water law.

Conversely, in law, property can be rivalrous... but need not be. Indeed one rule of thumb for a quick and dirty test of property rights - but the test is only useful up to a point and for a limited purpose - is who has the right to abuse the property whether it is in fact abused or not. See e.g. committing waste.

Much of the point of modeling - logical or mathematical - is to gain a spurious precision as a check on fuzzy notions. I'd say folks often claim an over the top explanatory value for a personally preferred model rather than accept that one model explains most cases and other models each explain a few cases. One size fits all gives Cinderella as well as her sisters sore feet. The negotiations (including adversarial proceedings) following from Berne et.seq. is an effort to find that one size.[then again sometimes it's more important that something be promptly decided than that it be decided right]

Greg, I'm going to take your word that it was an attempt at translation, but that's not how it read on my end. I guess I'm willing to take another swing at part of the equation at least.

You mentioned the following at 401 So, copyright is a legal fabrication. Ownership of any kind is a social construct and all property, tangible or intangible, is a legal fabrication on some level.

You also said that, Without copyright, everything immediately enters the Public Domain, which is missing two important steps, creation and release. Until I've actually moved one of my stories from my head to a transmissable form that story doesn't exist. And until it moves from there to where someone can see it it's not in any meaningful domain at all, much less the public one.

Story is not a pure abstraction. I have any number of them on my laptop right now that have never been seen by anyone. If I delete them, they never will be seen. At this moment I have not just the abstraction of a story in my control I have the actual physical manifestation of it, a construct of thoughts and electrons. I made it, just as I might make a chair, using similar tools even, my mind and my hands and tools.

Is copyright the same as other, more physical property? No, it's something different. Is it possible to create ownership for it in the sense of property, I don't see why not. Property is a word with multiple definitions (some of which can apply to copyright as C.E. Petit noted above) Even if that weren't the case, those definitions are malleable because language itself is as much a cultural creation as ownership. There are cultures that believe the idea of owning land to be as silly as the idea of owning the sky and yet most of the dominant cultures of today have agreed that land can be owned.

If you aren't willing to acknowledge the multiple contradictory meanings of property I don't think we can communicate on the subject in any meaningful way.

Bruce B @292 -- your reply lost something in the HTML.

I can't get over the fact that this idiocy was perpetrated by the inventor of "Shades of Grey". If he had referred to his work as "Shades of Purple-grey" he would have been all over himself.*

Y'all might be interested in reading this paper on customary "intellectual property" among magicians. The secret for how to do a magic trick can not protected by copyright, patent, or trade-secret law; instead, the community of professional magicians polices itself by ostracizing anyone who blabs.

Greg,

A "remainder interest" has value. The "tax" on the creation of a copyright is the remainder interest after N years (where N is currently "life+too many" and should be "MAX(life+5,40 years)" or so).

(The +5 is so that a publisher would be willing to do another printing of The Last Unicorn knowing that copyright will last long enough for it to sell.)

When the government collects taxes in money, it spends the money (supposedly) "in the public interest". Copyright expiration, works going into the public domain, is directly in the public interest.

The purpose of Copyright Law (in the US, according to the Constitution) is to provide an incentive to create. There's a (very bad) argument that "life+75" provides more incentive than "life+50". There is no sane argument that anything done today can provide more incentive for Walt Disney to have created umpteen years ago (or even Joe Newauthor to have created last month).

Publishing Professionals: How much more would you pay for a "life+75" license to publish a book than for a "40 year" license? That is, how much is the after-40-year tail worth, in terms of the advance? I think that's a pretty good estimate of how much "more incentive" the extra-long term actually provides.

Kelly, so, I think I understand how the "tax" idea explains why copright expires and the work goes into the public domain. What the tax thing doesn't explain is why there is a copyright law in the first place.

If things start out naturally with no copyright law, then everything automatically belongs to the public, the author has no exclusive rights to control their works. If the "tax" is paid when the work is put into the public domain, then that does not explain why copyright was created in the first place. The tax only explains why you allow copyright to expire.

So, I think that while I understand your tax idea for copyright expiration, but there's still some kind of missing piece as to why copyright exists in the first place.

Greg, things start out naturally with no laws at all. There is no such thing as property or law except as a social construction. Copyright laws come into existence the same way any other law protecting property comes into existence, they serve the common good somehow and the political body running things passes a law.

There are purely-oral storytelling cultures in which the social assumption is that the story belongs to the teller. (That is, only one person can tell a particular story.)

Kelly@412, the thing is we have completely different assumptions about copyright, property, and law, so could you just zero in briefly on how you justify the creation of copyright in the natural space of no copyright?

Greg, #414, the exact same way I justify ownership of a house or anything else in the natural space of no ownership of anything. I think the root of our different assumptions may be that I don't find the natural space of no copyright any more natural than the natural space of no ownership of land. Both types of ownership are created by people for the common good.

If you're wondering why philosophically I own my particular copyrights as opposed to the more general why do I believe there should be copyright, I'll go back to the hypothetical chair I mentioned early, I made it, the story wouldn't exist if I hadn't.

joanne at #370

I don't know why I didn't say the name; I'm talking about Magnatune.

Nancy #416:

Right, Magnatune was the one I had in mind. I hadn't heard of anyone else with that model, but you never know.

Kelly@415: the exact same way I justify ownership of a house or anything else in the natural space of no ownership of anything.

But a chair (or house) is naturally scarce. If I'm going to sit on a chair, that naturally means that you can't.

Artistic works or expressions are ideas of the mind. For me to read some work and put the idea in my mind does not require that you must take the idea out of your mind. An infinite number of poeple can "sit" in an idea without taking the idea away from anyone.

I understand that a chair is naturally scarce and therefore laws regarding physical property treat it as a scarcity, keep track of ownership, transfer of ownership, and outlaw stealing.

What I don't understand is why the law would take something that is not scarce, something that is effectively infinite, and treat it as a scarcity. Just because the law does it with chairs, doesn't naturally mean it should extend to copyright.

I'll go back to the hypothetical chair I mentioned early, I made it, the story wouldn't exist if I hadn't.

Well, sure. Chairs wouldn't exist if someone didn't make them. That explains what's needed to create something. But why have copyright law turn it into a scarcity once its created?

Greg, you said But why have copyright law turn it into a scarcity once its created? Because without some kind of way to ensure that the artist gets paid it doesn't get created, making it infinitely scarce, i.e. nonexistent. Just like with the chair, the copyright is dealing with a scarcity, it's just doing it at a different point in the production process.

Kelly@419: Because without some kind of way to ensure that the artist gets paid it doesn't get created, making it infinitely scarce

That means copyright is an incentive to create the work, since the labor to create the work is what's scarce, not the work itself.

Certainly, if you didn't create a work because copyright was completely abolished for some reason, then the work would not exist, and would be scarce. But that's only that particular work. Some folks are creating works under FLOS licenses and giving the works away for free, which means copyright isn't required as some natural outcome of the way artistic works behave.

But I thought you said somewhere further up that you didn't view copyright as a service model, but since it is an incentive to create, not some outcome of the way artistic works behave, it seems like you're saying that copyright exists as an incentive for authors to make a living directly off their works, which sounds a lot like a service thing.

I can't remember what you said earlier, and maybe I mangled it in my memory. I thought you were saying copyright was a natural outcome of the way artistic works are. But I think you're saying now that it's an incentive to create. So maybe I misunderstood earlier.

Greg @420 No, you didn't mishear. No I don't agree that it's a service model unless all property is a service model. The whole conception of property is incentive. That's what capitalism is about.

I understand your argument, Greg. I just don't agree with it. I understood it the first time you made it and I didn't agree with it then.

The whole conception of property is incentive. That's what capitalism is about.

Well, that isn't the whole concept. I mean, you can't pass a law and turn property into a non-zero-sum game, where everyone gets as many chairs as they want for free. Property laws are, in part, addressing the problems inherent in physical things being scarce. Then there's stuff to encourage economic development laid on top of that. Laws against theft aren't economic development programs, they're laws because stealing is wrong.

But the heart of what you're saying, if I understand correctly, is that copyright exists as an economic incentive to get more authors to create new works. You're not saying copyright is a requirement, that we have to have it, or that it's some natural outcome some thing-like attribute of artistic expression.

You're saying that without copyright some number of people (N) would create new works, and with some form of copyright, some number of people (N+M) would create new works.

That's basically what you're saying, right?

To the extent that there are sides, Greg and I are more or less on the same side. Meaning: if this ever comes down to a practical political issue, as opposed to something we chat about on blogs, it'll eventually come down to some crude and practical question. Do you write to your representative in favor of amending the copyright laws as specified by house resolution 27b/6? Do you support or oppose Senator Smith's filibuster? And so on. There will be some binary choice (if this discussion goes anywhere, that is), and undoubtedly neither choice will be perfect, but people who care about these issues will have to make one choice or the other, and probably Greg and I will make the same choice, whatever it comes down to.

But until the moment of practical politics comes, I don't think binary opposition is a terribly useful way of thinking about these issues. The thing about binary distinctions is: it can be correct to say that every position can be characterized as A or not-A, without being productive. There are (literally) an infinite number of ways of dividing the possible space of ideas in two. A or not-A? B or not-B? Both can be logically correct. If you're going to argue that you want to characterize every possible opinion as A or not-A, it's not enough to show that that distinction is logically coherent; you also have to explain why you think it's interesting.

Matt @424, as far as I can tell, Greg and I aren't too far off in how we believe copyright should function in terms of who gets to do what for how long. I think we may be off by a few years, but probably not much more than that.

The problem is that we have different philosophical positions on the idea of ownership and why copyright should work in a given way. I'm fine with that. It's not like we're talking physics–we're talking about the law and sociology of ownership.

Speaking of which...Greg, in response to your last, no that's not all that I'm talking about. There are emotional and moral components to the way I think about ownership and service that are simply not addressed by trying to reduce the question to an equation, just as there are emotional and moral considerations in the making of art that don't map well onto equations of trying to say what art is.

If you want to believe that the creation of art and its relationship to copyright is entirely about some sort of service model, you are entirely welcome to. For some number of people that model doesn't work. I'm one of them. I suspect there are others or people would never have started talking about copyright in terms of ownership.

I'm sorry if we sound to you like we're speaking Martian. The reverse case is also true to some extent. What it feels like you're arguing is for a legal structure that takes away the ownership I feel for my work and that's simply not acceptable to me as someone who creates art for a living–that's emotional and moral Martian for me. Since law is not just about facts but also about impacts, including emotional, financial, moral, etc. it is perfectly possible to understand your arguments on an intellectual level and find them lacking in their relationship to law and art. This is the case for me. I do not agree with you. On this topic I suspect that I could not agree with you and still be me.

Writing and art is not just my primary source of income, it is also very much at the core of who I am. I have a very strong emotional feel of "I made my work, I own my work, it is mine." And conversely, trying to take that away, which is what a model that calls my art service and "not mine" does for me causes me to not want to make art. This is why I simply can't support the idea. If that makes sense to you, you will see why I don't agree with a service model. If it doesn't there's a good chance that you will never make sense of my opposition to a service model.

Greg, there's something else about copyright that you're hinting at. DMCA is an effort to extend existing xopyright principles from a scarcity economy (It still costs to print a book) to an abundance economy (what's the cost of downloading a third of a megabyte--there are bigger web pages).

I've not seen any evidence of a practical way of rewarding all creators for downloads which can dodge the DRM problem. But current DRM implementations are promoting delusions.

These delusions include the universality of US law, the denial of "fair use", and the security of an encryption system that has to be readable by the end-user who you're trying to keep the secret from.

And DRM seems to be set up to freeze out the small producer. It's almot inviting the vanity presses to intrude into ebooks:

"They don't want you to have DRM to protect your work. But if you contract with us we will, for a modest fee, provided you with a DRN-protected copy of your text, which you can sell through our website, sure in the knowledge that you are protected from pirates."

The scary thing is, that easily could be done as an honest service. I'm working on something that could soon be sold on my behalf by a marketing website. It's a website that's been around for years, and it's a part of that segment of the media industry. But if you applied the renderosity.com model to ebooks, as something new, how can you draw a distinction?

Ack, hit post instead of preview. I had one last point. Calling copyright "property" and giving the artist a legally recognized conceptual ownership of their art is a significant part of the incentive copyright gives to me to create. The legal control and the income it generate are only a part of what I want from copyright. The idea that my work belongs to me, and is recognized to belong to me at least for a set period of time, is also a big part of the incentive to create. The incentive that copyright is created to give.

Dave Bell #426: These delusions include the universality of US law

US law is universal and extraterritorial (as shown by the SCOTUS Noriega decision) to the extent that Pax Americana is willing to use military power to enforce it. In less strenuous cases, the US can and does use the threat of withholding financial aid until a target nation's laws or treaty obligations mirror US intent.

#396: It must be nice to be a privileged person at Scribd.com who gets immediate responses from high-ups via iPhone. The view from steerage is rather different.

As I said, I joined one of the Scribd "copyright violations" groups in a spirit of experiment. The group was rapidly removed, supposedly because (in the words of Scribdman Jared Friedman) "For example, it would not take long at all for some joker to add every document on Scribd to the copyright violation group. What would we do then?" Well, Scribd could simply ignore the group, exactly as Scribd ignores outside warnings about dubious uploads. As they told Jerry Pournelle:

Thank you for the information and for your interest. At the risk of being tedious: since this is not an official DMCA notification, I can't do anything directly until I hear from their legal representatives. I have heard from Sir Arthur Clarke's, and I will remove his content posthaste. Thank you for pointing it out. If you know the entity that manages the affairs of the estate of Isaac Asimov, they will want this information in order to send us a request that we can comply with.

I find it interesting that (a) some unknown hand added an issue of Johne Cooke's legitimately posted Ray Gun Revival magazine to the "copyright violation" group; (b) this issue was quickly taken down, leading to Johne Cooke's rightful protest and the document's swift reinstatement; (c) the group itself was then deleted, with email to the members explaining that as "As a gesture of goodwill, we have removed all the documents added to the copyright violation group."; (d) no document which I added or remember being added to that group has in fact been removed from Scribd. The experience is not wholly unlike being lied to.

Making the requirements for active SFWA membership (and I was proud to do it on my US publications alone) was more than simply a high professional achievement, for me. I'm just a nerd at heart, and that membership was in goshwowohboyohboyohboy territory. I was someone. I had arrived. I could go into the SFWA suite at worldcon and hang. Maybe I was only second degree, but I was in the same lodge as, well, you know.

And now... I suppose I should resign.

Goddammit, why does everything humans do all fall apart?

Tangent but closely related by my own odd lights.

Would it be useful to lobby for an exemption from Thor for the tangible expression of intellectual property? Given the rise of new technology and especially print on demand Thor seems archaic and properly meaningless - for IP if not for machine parts - in the world to come anyway.

Given a restoration of the backlist/midlist market structure (which might or might not actually happen) then the opportunity to buy backlist at falling prices (at least falling real prices) arises. The availability of paper directly from the traditional market might postpone the day of the cheap to infinitely - in pecuniary terms -cheap Ebook?

Copyright is indeed a fuzzy notion and incentives even more so. I can imagine - not to say name - quite skilled writers who, regardless of pecuniary arrangements, would refuse to turn their characters/friends into the wild for others to toy with if the author had no control over derivitive works just as I can imagine a creator who did nothing but originate shared worlds (sometimes the same person in different roles as Dungeon Master and as playing character I suppose).

The strength of the common law is that there is and must be a specific case or controversy before there is a rule - one of many weaknesses is that the common law must and by rights ought to leave many things to a legislative process and we all know about watching laws made.

I'm not sure that what should properly be done now, today, about the current controversy and what should be legislated as a general rule lead to the same rule. I am sure that hard cases make bad law.

Earl Cooley @ 428

the US can and does use the threat of withholding financial aid until a target nation's laws or treaty obligations mirror US intent.

I'd say that as a legal technique, this strategy works just as well as DRM and DMCA takedowns: it affects some of the real offenders somewhat, seriously inconveniences many who would not otherwise be considered offenders, and pisses off just about everybody. Don't let's put this one in the Evil Overlord's Handbook, it doesn't appear to have legs.

Dave Lucket @ 430

Goddammit, why does everything humans do all fall apart?

To paraphrase GE (another one of the big players in the copyright wars these days): "Entropy is our most important product".

Clark E Myers @431:
Would it be useful to lobby for an exemption from Thor for the tangible expression of intellectual property?

I didn't realise Norse gods were in charge of copyright. I'm a-Freya'd that may make Odin onto one's rights harder, if one is un-Loki. To put it in a Baldur fashion, one could end up truly hammered.‡

(I guess the more interesting areas of jurisprudence got farmed out to other pantheons. The Greeks probably snaffled separation of powers, so Zeus*, Posiedon** and Hades*** could go back to their usual squabbling. And I reckon Coyote is patron of contract law†. The Hindu pantheon could not settle on any one area of the law; various deities cover felonies (Kali presiding), family law (Krishna has a lot of say here), and litigation. The ancient Egyptians, naturally, do pensions and probate.)

-----
‡ This is my attempt at lightening the tone
* Executive. He has the lightning bolts, carried behind him in the so-called "discus"††
** Legislative. All the fishies want him, and it's one manta, one vote.
*** Judicial. He's the only one with enough black robes. And, as usual, it's all that was left.
† If you've studied contract law, you know what I mean
†† football hasn't been invented yet.

Perhaps one of our hosts would like to comment; both of the Nielsen Haydens have talked about Thor Power Tools before. Based on what they've said in the past, I'm not convinced that it has very much to do with the current state of the book industry.

Dave Langford (#429): '...the group itself was then deleted, with email to the members explaining that as "As a gesture of goodwill, we have removed all the documents added to the copyright violation group."; (d) no document which I added or remember being added to that group has in fact been removed from Scribd. The experience is not wholly unlike being lied to.'

Not wholly unlike, but not wholly like. I'd say it is the result of Scribd learning that they cannot accept even well-meant third-party takedown requests, since third parties may be uninformed of the copyright holder's intentions. I suspect they will accept first-party requests without proof of identity—have you had trouble getting your own work removed?

What is missing is a way for a copyright holder to issue a blanket proxy for certain works to be removed upon discovery. The discovery of the works should probably be carried out automatically.

536 - the result of Scribd learning that they cannot accept even well-meant third-party takedown requests, since third parties may be uninformed of the copyright holder's intentions emphasis added.

I would have said need not in the context myself.

I certainly believe and understand that Scribd can do as the management and ownership please when it comes to removing anything posted with certain exceptions in which they must remove things.

I know of no rule in law or equity that requires Scribd to allow anything at all once posted to remain on their servers.

Speaking of contract Scribd has no contract with anybody to display anything (advertising aside perhaps) so far as I can see and everything Scribd does display is by choice - their decision including not to decide is to decide. Any suggestions to the contrary gratefully acknowledged.

In the circumstances at issue Scribd and the copyright holders are hardly described as privies in the beginning (there's a straight line for some purposes).

Following one famed English commentater Isis must be the go to Goddess for the law Sir - Apuleius, Metamorphoses (alternate title). IFF equitation be to do equity then there may be temples all over Sicily to the Godfather's methods of resolving disputes equitably.

Time was some of the various fan groups of the rec.arts.author variety would amuse themselves tracking down improperly posted works on the web - some counts of the time that were once high would be easy marks to exceed today - time was the effort was greater but so too the rewards in egoboo. Perhaps that too is a wave of the future - fan groups doing a takedown effort for their favorite authors or con-guests; authors giving signed bookplates for improperly posted works noted for takedown? No doubt I'm late there likely are already clubs meeting to discuss a favorite work and also to count coup by marking the work for takedown?

abi @ 434... I didn't realise Norse gods were in charge of copyright.

Odin you haven't heard of the guy in charge of that at Thor Books?

welcome home, serge!

Thanks, miriam. You kids behaved while I was away?

Serge @438:
Odin you haven't heard of the guy in charge of that at Thor Books?

Didn't he just win a Huginn?

abi... Idun know, but I hear he was paid a lot of Muninn for it.

Serge @442
No, you're raven; it's not a well paid position. Feather or not you complain and wing-e about it, publishing is not Loki-rative; he learned that long a crow.

abi... No matter what, I hear he loved the award so much that he's planning to Sleipnir it all the time.

Clark E. Myers (#437):

536 - the result of Scribd learning that they cannot accept even well-meant third-party takedown requests, since third parties may be uninformed of the copyright holder's intentions emphasis added.

I would have said need not in the context myself....

Given what they have had to put up with over removing valuable, legitimate contributions on incompetent advice, I'll maintain ought not. They may not have a legal or contractual duty to keep stuff up, but their purpose is to make contributions available. Works containing mentions of an author's name or truly fair-use quotations from copyrighted works need protection from Burtification.

Serge #444: Glad to see you made it Heimdall well.

All these Norse puns are bringing Tyrs to my eyes.

Wotan embarassing state of affairs.

But Serge, you'll have seats in the Loge...

Serge,

and the rest of the time he's going to Loki that award up tight. I'm sure he won't give a Frigg what anyone else says, he'll be Bragi'ing a lot about it, probably turn into a real Boor.

Odin't hear that.

All this Munin and Wayland about Norse puns is getting on my Narvi...

Hel only knows where this is going to end, but I'm certain that everyone will be feeling Thor. I do know I'm getting Balder.

Kelly@525: There are emotional and moral components to the way I think about ownership and service that are simply not addressed by trying to reduce the question to an equation,

I was trying to understand what that model is, but it seems to boil down to "I made my work, I own my work, it is mine."

trying to take that away, which is what a model that calls my art service and "not mine" does for me causes me to not want to make art.

Well, that would be for the public to decide, if it ever has a real discussion about copyright. Not every author, copyright holder, and IP enforcer is going to be happy with anything resembling a "reasonable" term. Life+70 is absurdly long. But if you shorten it even 20 years, you'll hear some people howl about theft, how the public is stealing their works, I made it its mine, taking their coal mines, infringing on business, and so on.

Which means that isn't enough for me to say we should leave terms the way they are. No doubt, as we near Steamboat Willy's expiration, we will be hearing how Life+70 simply isn't enough. Isn't fair. Someone created a work, and now the gummimint wants to take it away. Meddlin' revenuers.

So, when I try to apply my understanding of copyright to your view, it does indeed come up as Martian. I have nothing to work with to figure out if your model is a reasonable term because you're saying exactly what some people and corporations are saying that I know are unreasonable.

Which is weird for me, because you have exactly the same reasoning as some Life+70 people ("I created it, it is mine"), but your saying you'd go for a shorter term than they would. Which means there is some difference between you and them, but it's not obvious to me what it is.

So, if the public ever has a full and honest discussion about copyright, (and part of "honest" is that Disney, MPAA, RIAA aren't pumping hundreds of millions of dollars into lobbying funds), then the question that the public will have to answer is where the cutoff point will be. What is long enough of a term to get "enough" people to create new works.

Life-Or-40-Whichever-Shortest, might be the point the public agrees to put up with, and maybe some folks who want their great-grandkids to get royalties will throw down their keyboards in protest and never write again. then that'll be up to the Public to decide.

It might be that a fixed term of 42 years is proposed, at which point, maybe some folks will thow down their pens in protest and never create again.

The thing is that even if we shortened the terms to Life+50, you'll still get some copyright holders who protest. Which means if there is no other way to distinguish one person's position from another by understanding what is different about their poitn of views, then all that's left would be for the public to pick a reasonable term and let the protesting authors fall where they may.

I'd consider it a huge victory if we could simply reduce terms to Life-Plus-50 in my lifetime (the minimum term to be a member of the Berne Convention), so I don't think we'll be seeing in my lifetime anything that approaches anything that I'd call reasonable, or really pushing the boundaries or limits of what authors would be willing to tolerate for a term.

Actually, I'd consider it a huge victory if Steamboat Willie entered the public domain without Disney purchasing yet another copyright extension or some other angle on intellectual property law to monopolize that damn mouse.

But that's just me.

Question from the gallery here. What is the earliest copyright law? When did creators get the right and authority to control reproduction and distribution of their work? Prior to that we had things like rich patrons, guilds and honour code.

T.W @ 455

Actually, publishers and printers often controlled reproduction and distribution, after Gutenberg. The ideas weren't seen as the product, the laboriously produced physical object was - this is a conceptual hangover from the days when everything was painstakingly hand-written. In Italy, at least, a publisher or paperseller would petition the state for license to publish a particular work.

I'm not sure when that changed in Italy, but a quick wiki tells me that the 1710 Treaty of Anne (England) was the first to give authors (rather than publishers) limited rights to control the distribution of their work.

Greg, sorry for the translation problems. I really would like to be able to cross communicate on the issue or I wouldn't have kept coming back, but at this point I'm pretty sure it's not going to happen. Probably because the stuff which is called "intellectual property" doesn't fit neatly into either of the words "service" or "property" and because it doesn't all even fit neatly into one box labeled "intellectual property." There's a huge difference between a poem created by one individual and an operating system created by a large corporation and yet they both get the same tag. Likewise, "ownership" has many recognized meanings for many people.

It's one of the big slippery words like "truth" or "belief." Words are enormously powerful and the more powerful they are the more argument there is over their exact meaning. Worse, they change and shift constantly and every field has jargon that further blurs meaning. As I said before, I mostly agree with you on the issues of copyright length and how it should function, I just don't get there the same way.

Thank you Vian.

Copyright has been around long enough it's hard to picture a positive functional world without it. Very easy to picture a world of theft and exploitation though.

How is a poem created by one individual, as opposed to a OS?

Surely any given poem is the product of a confluence of societal influence, the pointy bit at the end of a vast pyramid of thought, equally as much as any given computer program. There may not have been a formal association in every case (although many have), but people are social, and so are our works, be it poems or OSes.

(Actually I suspect that you can trace ideas in programming to identified individuals far more readily than in poetry. I think that programming is far more of a fit for the `created by an individual' tag than poetry, but, you know, (a) subjective, and (b) more research needed...)

Well, things better stay on track here, or there will be some Fenrir-ing their heads over it.

Welcome back Serge!

Disney, we're maybe forgetting, are semi-notorious for their use of trademarks on their characters. Some of that notoriety comes from the need for trademarks to be actively maintained.

Does anyone seriously think that commercial distribution of a public domain Steamboat Willie would not lead to litigation over the trademarked character design?