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Donna asked me to summarize Chris Sprigman’s Stanford Law Review article, Reform(aliz)ing Copyright. I’ve had the pleasure of working with Chris this summer at the Center for Internet and Society and assisting him with this article and with a related lawsuit, Kahle v. Ashcroft, which seeks to remedy the negative consequences for First Amendment freedoms caused by the move from conditional to unconditional copyright. Here’s my summary:

For the first two hundred years of American copyright, creators who wished to take advantage of the copyright system had to do more than just creating. They had to give notice to the reader that copyright protection was claimed, register their claim with the government, deposit a copy with the Library of Congress, and then renew their copyright after a certain number of years. Together, these requirements were known as copyright formalities.

Between 1976 and 1989, these formalities were eliminated. Now, from the moment a work is created, it is protected by copyright for seventy years after the creator dies, with no further action required of the creator. When the formalities were eliminated, Sprigman notes that we moved from a “conditional” system of property rights to an “unconditional” system, in which rights vest in the author regardless of whether the author values them or intends to claim copyright in the creation.

At the time the formalities were eliminated, lawmakers and copyright holders emphasized the negative consequences of the conditional copyright system. Because some of the formalities required some amount of recordkeeping — in order, for instance, to renew the copyright within the required period — copyright holders sometimes lost their rights by accident. But some copyright holders, Sprigman shows, failed to comply with formalities quite deliberately, to prevent copyright from attaching to their works. The twentieth-century composer Charles Ives, for example, was ideologically opposed to copyright in music, and showed his opposition by deliberately omitting copyright notice from his published scores. More importantly, when a work no longer had any commercial value, the copyright holder would make a rational choice not to renew the copyright, since there was a small cost associated with renewal and renewal-related recordkeeping. In this way, Sprigman argues, formalities acted as market signals, causing works to fall into the public domain automatically when their creators no longer saw any value in them.

In other words, formalities weren’t just annoying ministerial requirements, traps for the unwary included for the sake of tradition. They were smart economics. They caused works to exit copyright’s system of exclusive rights when the economic value of that exclusivity was exhausted.

So, Sprigman asks, what can we do now? The Berne Convention, to which the United States acceded soon after its elimination of formalities, prohibits formalities as a condition for copyright protection. We can’t just reinstate formalities going forward. Sprigman sees renewal as the most obviously economically important formality; exclusive rights that are economically worthless to the rights-holder but potentially valuable to other parties are a dead-weight loss to society. Sprigman proposes a system of “new-style formalities” — voluntary notice, registration, deposit, and renewal. If a copyright holder decided to opt out of the system of voluntary formalities, their work would be subject to a “default license”. The license fee, payable from the user to the copyright holder, would be set such that the full cost of compliance and the full cost of noncompliance are roughly equal. Sprigman discusses the consequences of such a system for United States treaty compliance at length in the paper.

Along with a forthcoming paper by Richard Posner and William Patry, Reform(aliz)ing Copyright lays the foundation for a new battle in the copyfight, focusing not on the optimal length of the copyright term but on the optimal set of conditions a copyright system should demand of parties claiming exclsuive rights.

The EFF has a press release announcing the settlement of JibJab’s declaratory judgment suit against Ludlow Music.

In a personally gratifying outcome, the copyright on This Land Is Your Land is invalid because:

According to EFF, the initial copyright term was triggered when Guthrie sold his first versions of the song as sheet music in 1945. The copyright on the song then ran out when Ludlow failed to renew its registration in 1973.

As I noted:

“This Land” was first published in printed form, it appears, in a mimeographed pamphlet Guthrie sold called Ten Songs for Two Bits. That was in 1946.
…
Did this mimeographed pamphlet contain proper copyright notice? Current copies of the song bear a 1956 copyright date. Was selling a mimeographed pamphlet “publication”? Did the work enter the public domain in 1946?

It wasn’t quite as I predicted; the pamphlet did bear copyright notice, it turns out, but Ludlow flubbed the renewal because they didn’t know about the earlier publication. (And the pamphlet was from 1945, not 1946; my source got it wrong.) But I’m glad to see that I may have sent EFF in the right direction; Fred von Lohmann emailed me soon after that previous post asking where I’d gotten my information on Ten Songs for Two Bits.

EFF somehow (quite impressively) dug up a copy of the 1945 pamphlet. “This Land” appears on page 8.

Just one more reason why formalities should be sorely missed.

Judge Richard Posner is guest-blogging on Larry Lessig’s blog this week, and he speaks of a forthcoming paper with a brilliant compromise between copyright propertization and amelioration of the negative effects of long copyright terms with no renewal required:

Bill Patry, a distinguished copyright lawyer and treatise writer, and I have written an article soon to be published in the California Law Review in which we advocate an interpretation of “fair use” that would solve the major problem that extending the copyright term creates. We argue that it should be considered fair use to copy an old work if the copyright owner hasn’t taken reasonable steps to provide notice of his continued rights, as by entering his name and address in a copyright registry. Given such a rule, such registries (which have counterparts in the case of works of visual art) would spring up overnight. Then if an Eldred wanted to publish some old work, he would consult the registry or registries and if no owner was listed (which would usually be the case, because most old works have no commercial value and so their owners won’t bother to try to keep them from falling into the public domain), he could publish it without a license.

This seems somewhat similar to the Eldred Act proposal, and has the potential to raise the same Berne convention compatibility questions. Similar problems are explored by a forthcoming article in the Stanford Law Review by my CIS colleague Chris Sprigman titled Reform(aliz)ing Copyright.

According to this article, the Pixies are fed up with the music oligopoly (imagine that) and will be foregoing big record companies in favor of alternative revenue streams — sales of concert CDs, concert tickets, scoring and sync rights, and digital downloads.

It seems likely this is where big chunks of the music world is heading — showing, once again, that the Pixies are well ahead of their time.

Mary Hodder heard that the conflict between JibJab (represented by the EFF) and Ludlow settled, with JibJab getting everything they wanted. According to her, the decisive issue was one of validity, not infringement, as I expected.

James Boyle has this lucid column in the Financial Times about the Apple / Real controversy and what it can show us about the difference about the way we think about competition in the real world and the way we’re being led to think about competition when copyrighted digital content is involved.

Tim Wu thinks the Supreme Court will grant cert in Grokster because, among other reasons, “Law clerks use KaZaA & BitTorrent to plan basketball games” and “Souter got his first computer last week.”

This morning’s decision in Grokster was a watershed in another way: they didn’t capitalize “internet”. As goes Wired, so goes the world.

We won Grokster.

Everybody’s quoting the end of the opinion, where the court talks about the “quicksilver” nature of technological innovation and how courts shouldn’t step in and mess things up. But I think the more important point is made at the beginning:

From the advent of the player piano, every new means of reproducing sound has struck a dissonant chord with musical
copyright owners, often resulting in federal litigation. This appeal is the latest reprise of that recurring conflict, and one of a continuing series of lawsuits between the recording industry and distributors of file-sharing computer software.

This isn’t a fight that started with Napster, and this isn’t a fight that ends with Grokster. The conflict between the tech industry’s desire for progress and the content industry’s desire for stability is over a hundred years old; a lawsuit attempting to pin liability on the maker of a new dissemination technology is just another recurring trope. The innovators always win in the end, and the content industry always adapts.

In this motion for partial summary judgment and supporting brief, IBM argues that SCO is violating IBM’s copyrights in its contributions to Linux.

The argument goes like this.

1. For the past year or so, SCO has been charging license fees for the right to use Linux.
2. The GPL says that if you charge for licenses, your permission to copy and sublicense the work is void.
3. If you copy and distribute a copyrighted work without a valid license, that’s copyright infringement.
4. IBM owns the copyrights in its contributions to Linux.
5. Because SCO copied those contributions without a license, they’re liable to IBM for copyright infringement.

I like it. IBM also claims that SCO had no right to distribute Linux because it claimed in legal documents that the GPL was unenforceable and void. I think the violation-through-fees claim is stronger than the estoppel claim, though.

SCO seems likely to say (as they have in the past) that the GPL isn’t unenforceable in that it gives the licensee no rights but that it instead gives the licensee all rights — basically, that it places software in the public domain. That will be difficult to argue, because it’s dead wrong. SCO may next argue that their IP licensing program was not a license to anything other than their own IP, and that they’re free to license their own IP any way they’d like. They’ll claim there is a genuine issue of material fact as to whether the IP was theirs, thus defeating the motion for summary judgment. This argument has some chance of prevailing, but it’s still pretty weak.

IBM more or less has SCO in a vise. If SCO claims the GPL is void, it’s an infringer; if it claims the GPL is valid, its lawsuit against IBM fails. SCO will try to establish a middle ground, but these are all questions of law that are likely to be resolved on IBM’s motion for summary judgment.

While this isn’t the perfect posture for the first court ruling on the enforceability of the GPL, it’s a pretty good one. The SCO lawsuit may, in the end, turn out to be a boon for the Open Source movement by clearing away any remaining legal uncertainty regarding the GPL.

How could one help but blog about a get together at Jason Schultz’s house attended by Derek Slater, Mary Hodder, Donna Wentworth, Joe Hall, Elizabeth Miles, Alex Macgillivray, and James Grimmelmann?

The consensus, incidentally, was that some version of INDUCE will pass instantly upon the release of the opinion in Grokster, but that it won’t look too much like the bill as originally introduced.

Does anyone out there understand hyperlink policies, like this one from the 2004 Olympics site? They insist that those who link to the page use only the words “ATHENS 2004″ as the link text, so a link to the Olympics or the Games of the XXVIII Olympiad or even to Athens 2004 would presumably draw their ire.

Not to mention, I didn’t snail-mail them a letter requesting permission before linking to their site, as they demand. At least they don’t require a postal response before I can link to their site; you know, that would be just unreasonable.

The Future of Music Coalition has sent this letter to the Senate Judiciary Committee urging it to consider the INDUCE Act’s negative effects on musicians and indie labels. Great work.

In other anti-INDUCE news, this essay which James Grimmelmann and I wrote is up on savethe.org, an anti-INDUCE site run by freeculture.org.

So Real has slashed their download prices in half (to $0.49/track, $4.99/album). This is surprising given that they pay $0.65/track and $6.50/album to the record company. It’s less surprising given that they want iPod users to start downloading music from the Real download store instead of iTunes, and they’re unlikely to go through the hassle and risk of using Harmony without some significant incentive.

In shocking related news, online music store eMusic has also made their offerings compatible with the iPod and cheaper than iTunes — by letting people download un-DRM’d MP3s. Like they have since 1998.

It was a bellwether when the New York Times weddings page started publishing announcements of same-sex unions. Is it a similar cause for celebration when the Grey Lady publishes an unsigned editorial piece proclaiming that “balancing the protection of intellectual property with the idea of ‘fair use’ has become one of the seminal questions of our day”?

Scary new copyright legislation is no longer something we just get EFF emails about and bemoan after the fact. The issue has become sufficiently mainstream that a Times editorial is telling us that “[T]he so-called Induce Act, now under consideration, . . . would make it a crime to aid or induce copyright violations like illegal file-sharing. But the bill is so loosely worded that it could threaten a host of legal information-sharing practices and technologies. That includes everything from the iPod to automatic online translation.”

I think it’s a minor milestone.

I saw a young woman using what looked remarkably like a Sidekick 2 while waiting for the CalTrain in Palo Alto yesterday evening. It took me a few seconds to figure out why some random commuter would have one of these, which won’t be out for months. (Danger, Inc. headquarters is a few blocks from the train station. Duh.)

In other news, Paris Hilton has received her Sidekick 2. (Yes, it has a camera. Hush.)

Rob Enderle gave this speech at the recent SCO Forum conference. It’s titled Free Software and the Idiots who Buy It.

In a way, I’m glad. As the corporate opponents of Linux grow more shrill, they reveal their weak rhetorical and analytical position. The speech has already been well-fisked by Neil Wehneman and commented upon by Joe Barr. I think a few quotes will give you some of the flavor.

There are people who get up every day, work a 9 to 5 and go home to their families trading their lives for varying degrees of cash. In my view, though clearly not theirs, they are selling their lives very cheaply. These are wage slaves and the difference between people like that and a zombie is generally lost on me. Do you realize that many, I’m not saying all or even most, of the Linux supporters are like this, they have never coded anything in their lives, have never even played a video game, in fact the only reason they are supporting Linux is because it is a cause and their life lacks one. That is an incredibly sad group of folks, and I wonder what their reaction will be when they finally understand they are supporting software and not the second coming.

I’ve always had a sense for bullshit and bullies and have never cared for either. In college, both graduate and undergraduate, I was fascinated with human behavior. I watched the tapes of the Nuremburg experiments that showcased how people put in positions of authority could be ordered to torture and kill other people and that the majority of those tested in the study failed the “humanity” test. Groups of people can do really bad things and not failing the humanity test became a personal goal.

(N.B.: Here we have both an example of Godwin’s Law at work and a material misstatement. The tapes Enderle recalls are from the 1971 Stanford Prison Experiment (now available on DVD); there’s no such thing as the “Nuremburg experiments”.)

With Microsoft my relationship goes deeper. A few years back, when I was first starting out as an analyst, I got myself into a lot of hot water by doing something I knew was wrong to prevent a crime from being committed. I am both an ex-auditor and an ex-sheriff and took the related vows very seriously and still, for the most part, live by them.

By all accounts I would have lost my job and probably had to change careers again if it weren’t for Bill Gates personally coming to my defense and pointing out that what I did probably kept a lot of folks out of jail.

(I’m glad he’s on record with this admission.)

Ever wonder who pays for things like Cancer Research and the grants that fund advanced research in Artificial Intelligence? Much of that comes from foundations funded by individuals and companies. The other very big investor is the Department of Defense. Otherwise known as the department that created smart bombs that seem to seldom actually hit their designated targets. Smart my ass….

Free software doesn’t fund any of this; in fact it may not even be sustainable on a large scale. Many of the most active people backing the initiative now are ex-.COM employees who used the money they took from retirees, school teachers, and other unfortunate investors to “contribute” to the collapse of the US software business and the devaluation of software engineers. These well intentioned, I think, individuals will eventually move on to other things and then what? How many others are in the wings who will work for free?

This was the keynote at SCO’s developer conference. It makes me happy that SCO’s headliner thought it necessary to compare Linux users to Nazis and blame them for bursting the dot-com bubble. Score one rhetorical victory for Open Source.