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Alright ladies and gents. Property is, of course, something upon which Objectivism places a high value. Intellectual property is part of property. Copyright is part of intellectual property. Some of you claim it in your writings on this very forum. But what is the law of copyright exactly? I will use this thread for discussion of the copyright laws as they exist, and of course anyone can use the particulars as catalysts for discussion of how they should be. There are plenty of threads on IP generally. This one is intended to discuss the very specifics of copyright law. (Disclosure: I'm in a Copyright class right now, under the instruction of one of the premier copyright academics in the nation. Despite that, do not rely on this or any of my other posts for legal advice.)

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First things first. Where does Congress get its authority to create the copyright laws? Article I, section 8, clause 8 gives us the magic language:

"The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries[.]"

It's late and I'm about to hit the rack, so I'll have to put off extended discussion of this until later. One point I would like to make now, though, is a very important one, and it pertains to the "to promote the progress of science and useful arts" language. In the famous Sony case in 1984, the Court stated what has been the view for years upon years:

"The monopoly privileges that Congress may authorize are [not] primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. . . . The copyright law, like the patent statutes, makes reward to the owner a secondary consideration. . . . The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors. It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius." 464 U.S. at 429 (internal citations and quotations omitted).

Anyone should feel free to discuss this particular point. The next new thing I intend to discuss is section 102 of the Copyright Act.

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  • 2 months later...
who has standing to sue you for infringement if you include technically protected materials, when the rights-holder is an unknown quantity?

17 U.S.C. 501(b ):

The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it. The court may require such owner to serve written notice of the action with a copy of the complaint upon any person shown, by the records of the Copyright Office or otherwise, to have or claim an interest in the copyright, and shall require that such notice be served upon any person whose interest is likely to be affected by a decision in the case. The court may require the joinder, and shall permit the intervention, of any person having or claiming an interest in the copyright.
According to the statute, only the legal or beneficial owner of an exclusive right can sue. (The rest of s.501 has some additional standing rules pertaining to cable and satellite transmitters.) How does the owner know who s/he is? 17 U.S.C. 201(a):

Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work.

So the author starts with the copyright. (Usually, as you know. The rest of s.201 covers special situations like works for hire.) What about transfers? They must be in writing. 17 U.S.C. 204(a):

A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner
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As I understand your question, it seems to ask how the rights-holder can be unknown to the rights-holder.
Ah, no, I'm the permission-seeker. To protect the innocent, names are changed. To publish X which includes a portion of protected work Y, I need permission. Y's creator A is dead, and there is no clear indication where A's will was probated (we believe it was in an English-speaking country, at best), if he even had a will. His work was published by B & Sons, a company that no longer exists, whose assets were probably scattered amongst a dozen businesses over a protracted period of retrenchment and collapse. If I get lucky in my plan of randomly cold-calling every business in the world, I might find the person with the right to give permission. The annoying thing that occurred to me recently is that if I get permission to copy, I really ought to have an indemnification clause (meaning, I should just not bother asking permission if I'm gonna be a pill) where the supposed permission-giver warrants that they are indeed the legal rights-holder and they indemnify me against all claims based on my believing their sloppy bookkeeping. Lest I get a letter of apology from them saying "Oopsie, it turns out that we don't really have the rights to that work so we can't technically give you permission..."

Anyhow, the main point is that in terms of the purpose of IP law, that purpose is not being served if the creator (or heirs) cannot benefit and others cannot use the work as a basis for a new creation for 100 years. But I don't have a concrete proposal for how to remedy this.

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Anyhow, the main point is that in terms of the purpose of IP law, that purpose is not being served if the creator (or heirs) cannot benefit . . . .

The thing that isn't sitting right with your scenario is that it is very simple for your copyright owner to benefit if it wants to. Just register the dern thing. Then it's cake for any would-be permission-seeker to find it by searching the records of the Copyright Office.

I think your scenario is only a problem if the copyright isn't registered. Now, granted that most copyrights are never registered, but that doesn't really apply here. If your concern is about copyright owners not being able to benefit when they want to, they are in a position to address that want by registering which puts up the copyright bat signal.

What say you, Lieutenant?

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Just register the dern thing. Then it's cake for any would-be permission-seeker to find it by searching the records of the Copyright Office.
Okay, that's fair; the question is whether it's binding. The book in question isn't registered in the US so I may have to hire someone overseas to do the search, but whatever (I'm actually slightly annoyed to see that my stuff isn't registered in the US). Having performed a diligent search, I determine that according to the registry, the original author holds the copyright, he died without heirs and made no provision to pass on his rights to the book, so the owner has effectively abandoned interest in the work. That almost solves the problem, except that I still can't safely benefit from his implicit largesse, because registration is optional and updating the claimant information is highly optional. As long as Godzilla Press (or Megabookcorp or...) can prove that it legally acquired the right to the book in secret, they can sue me for everything I own. What we need is a revision of 17 U.S.C. 501(d) where transfer of ownership must be reported, so that in this case I could rely on the implicit abandonment of interest. Otherwise, the work remains effectively in the black box for another century.
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If you want to make recordation of transfers mandatory, wouldn't you want to amend 205(a) to say "shall" instead of "may"? Would this address your concern, or would you still want to amend 501? If you still want to amend 501, what do you think needs to be changed?

In a scenario like the one you're describing, I wonder if a declaratory judgment wouldn't be a possibility. I might look into that, because I've often wondered about the ins and outs of those.

Btw, this is all hypothetical right? Please tell me you're not asking for legal advice. :lol:

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If you want to make recordation of transfers mandatory, wouldn't you want to amend 205(a) to say "shall" instead of "may"?
Excellent in its simplicity.
Btw, this is all hypothetical right? Please tell me you're not asking for legal advice. :huh:
No and uhhh. I know better about legal advice, so this is just idle intellectual chit-chat. It does correspond to a real problem, but I'm reasonably certain my butt is covered by Fair Use anyhow, so actively seeking permission is the extra mile the cautious man has to walk (given how Fair Use is a towering monument to subjective legal interpretation).

Declaratory judgment, eh? Something to read, at any rate. Well, probably not under 28 USC 1332 since it's hard to imagine the amount in controversy test being satisfied.

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