[derleth]

> Without copyright protections, I could get a copy of your book, remove your name from the title and use my name instead, and then sell it to others.

So that's what the law should prohibit, now isn't it? The law in this matter should be updated to reflect what most people are against. If it isn't, it isn't ever going to be enforceable, just like it isn't enforceable now.

(No, I don't think that every law should be brought into line with majority morality. Use your damn head.)

[dalke]

Right. You say "We have laws against 'copyright infringement', a wonky idea that essentially nobody understands or cares about, but not against plagiarism, which is what most people actually are against and will work to combat."

Plagiarism does not have a legal definition. It is based on moral/ethical principles which are specific to a field of endeavor. For example, academia has very strict rules against plagiarism while in artistic fields ... well, to quote Picasso, "Good artists copy, great artists steal." People are against plagiarism in the same way that they are against bad art, excessive noise, and foul manners - because by definition plagiarism is something people are against.

"So that's what the law should prohibit, now isn't it?" My point isn't tossed away so lightly. Current copyright law says that my scenario is illegal. Let's suppose then that we change the law. Can you tell me in a non-wonky way what that new law might be?

Under this moral law, can I take the text of Harry Potter, replace "Harry" with "Henry", and redistribute the modified text? (Crediting Rowling, of course). Why or why not? Can I translate Harry Potter into another language? What about fan-subs? Make my own MST3K-like version of the movie? Replace Potter's head with my own? Project the movie onto my garage for my neighbors to watch? And charge them money for it? There are people who would say "yes" to all of those. And people who would say "no." What is your guiding principle?

How would it affect the decision in Dastar Corp. v. Twentieth Century Fox Film Corp.? Do you consider Dastar guilty of some sort of moral right which is punishable under the law? If so, then what is your view on Scalia, writing for the 8-0 Court: "A video of the MGM film Carmen Jones, after its copyright has expired, would presumably require attribution not just to MGM, but to Oscar Hammerstein II (who wrote the musical on which the film was based), to Georges Bizet (who wrote the opera on which the musical was based), and to Prosper Mérimée (who wrote the novel on which the opera was based). In many cases, figuring out who is in the line of “origin” would be no simple task." When does one give up figuring out the line of origin?

I think anything you come up with will be as wonky as copyright law.

Do you realize that the GNU GPL is based on strong copyright law, and that removing it means the free software movement, who can enforces freedom through the GPL, would be almost powerless under your proposal? Does that affect your thoughts?

[icebraining]

All laws have boundaries, sometimes non very clear ones. But they are still usually understood. Copyright is violated everyday, by almost everyone.

Do you realize that the GNU GPL is based on strong copyright law, and that removing it means the free software movement, who can enforces freedom through the GPL, would be almost powerless under your proposal? Does that affect your thoughts?

I'm not derleth, but personally, I think it's a decent trade. Particularly since more and more free software is non-copyleft anyway.

(I'm an employed AGPL developer, by the way).

[dalke]

Yes, laws can change. Though copyright is a hard one since that's a Constitutional power.

Can you answer my specific questions? Do you believe that all of those actions (regarding Harry Potter derivatives) should be allowed under the law? If not, why?

Is it okay for me to I take the top 10 best selling new novels for this week, put them into an anthology, and publish them on Amazon for US$0.99, without paying anyone, so long as I acknowledge that I'm not the author? What if I publish them on Amazon for $0.00? What if I put them on some torrent site somewhere? Do you believe that all of these are acceptable behaviors?

We can abolish copyright. Would you replace it with anything?

[csense]

> copyright is a hard one since that's a Constitutional power

From my reading of the Constitution, the only thing it says about copyrights is that they're one of the matters over which Congress has jurisdiction (as opposed to the states).

There's nothing in the Constitution which says that Congress can't change the requirements a work must meet for copyright to be granted, lengthen or shorten the amount of time a copyright lasts, or even abolish copyrights altogether -- in fact, in the past Congress has done all of these things, except weaken copyrights by shortening or abolition. No Constitutional amendments required.

[dalke]

You are right. I don't know how expansive the Supreme Court might interpret things. Can the power to extend copyright and patent protection also extend to specific moral rights? How far can that clause go? I guess the US passed the Visual Artists Rights Act, so it seems possible.

In Feist v. Rural, the supreme court said that copyright requires a creative action. It can be minimal, but it can't be a "sweat of the brow". Previous district court were divided over that. Compare to the UK, where the amount of work which goes into collecting or verifying a database is enough to establish a copyright.

I interpret this to say that there are certain copyright-like and patent-like actions which Congress cannot do, because it isn't a power granted to it. Yet on the other hand, trademarks are not based in the Constitution but are part of federal law. Which makes me wonder why copyright and patents are in the Constitution if they could have been done by other means.... except that perhaps it's the "for a limited time" clause which is important, as otherwise Congress could grant perpetual copyrights?

In any case, it's not "as opposed to the states", as states can also also grant rights. One such is the California Art Preservation Act. Federal law may preempt part of that state law. I think you should use "in addition to the states."

[prodigal_erik]

The GPL only uses copyright to prevent copyright from being used in far more harmful ways against future recipients of the work. If reverse engineering and redistribution were assuredly legal, we wouldn't really need it.

[dalke]

The GPL exists because even under the policy you describe, there's no way for someone who gets a binary to also have the ability to get the source code.

As an example, suppose I'm Tivo. I make this cool DVR using the Linux kernel. It contains modifications to the kernel, a new filesystem, etc. Suppose also that you purchase the DVR, which comes only with a pre-built binary. Under the GPL, you also have a right to get the source code used to make the binary, and in a usable form. Which is why you can go to the Tivo site and download the source for your hardware.

Reverse engineering might get you the effective equivalent, after a lot of work. Redistribution right doesn't give you the right to source code.

The GPLv3 also uses copyright to require licensing of patent rights.

Do you not need these rights? Do you think others might find those rights useful?

[prodigal_erik]

I hadn't considered the relationship between GPL and patents. I'll have to read more. Off the top of my head, I don't understand how anyone who went to the time and expense of getting a patent could ever jeopardize it with a GPLv3 release, since there's no bright line between a version of your program and a completely separate program that merely links enough code in to get a free patent license.

[dalke]

GPLv3 and Apache 2.0 are the two most widely used licenses which specifically mention patents. The goal of GPLv3 is (quoting from the license) to "[assure] that patents cannot be used to render the program non-free."

See http://fsfe.org/campaigns/gplv3/patents-and-gplv3.en.html for a long discussion.

The "bright line" isn't always so bright. Consider if a hardware company pays MPEG LA for an MPEG license in order to sell a piece of video hardware based on Linux. The hardware company didn't get the patent, so while they must release the OS source under the GPL, they don't have the right to sublicense.