
2018 Is the Last Year of America's Public Domain Drought - sohkamyung
https://motherboard.vice.com/en_us/article/xw4gwd/public-domain-drought
======
mratzloff
In my opinion, the best solution for everyone involved is to allow companies
to renew copyrights annually into perpetuity after an initial period, but
charge a non-trivial renewal fee and increase it with every renewal.

If you're a company like Disney, renewing certain properties should really
make you think after it starts to cut into the balance sheet. Most works
wouldn't generate enough revenue to justify the renewal and would fall into
the public domain. Disney wouldn't be holding thousands of unrelated works
hostage.

~~~
acjohnson55
Why bother? Why should we allow entities to continue to monopolize
intellectual property long after the actual innovators are dead? If Disney's
so great, they should be able to come up with some new shit. Otherwise,
they're just sucking up oxygen.

These rules are being abused to stifle innovation and competition, simple as
that. I don't have any problem in principle of some exponential scale, but it
just seems like a solution for a non-problem.

~~~
RhodesianHunter
Because the best solution to a problem is rarely to swing your approach to the
opposite extreme. That inevitably leads to more problems.

Let's take a few steps in the right direction and see what happens?

~~~
orbitingpluto
Intellectual property entering the public domain after the original creators
are long dead is not an extreme.

Perpetuating private control over what was already promised to be in the
public domain is the extreme.

Anything taken out of former copyright limits probably already is in the
public domain even in spite of the legislation without compensation to those
who have standing, which just happens to be the American people. Legal has
never pursued that avenue. Pity.

As for your username, wow.

~~~
LoSboccacc
what about group works? commission works? commissioned group work? right
transfer?

the copyright needs to be an entity by itself and not tied to the author.

it needs shortening but any proposal with 'original creator' center and
foremost is basically ignoring the reality of modern content production

~~~
SllX
> it needs shortening but any proposal with 'original creator' center and
> foremost is basically ignoring the reality of modern content production

There's a handful of ways to do it if you are not going to center copyright
terms around the life of the original creator, some of which I think are
better than others but I'll try to leave most of my opinion out of this.

1\. You can center it around first publication. In this scenario you actually
do not automatically retain copyrights unless you actually publish, and then
you would likely need to define in detail what publication is.

Is sharing in an email message or WhatsApp "publication"? I would argue not,
but the law would need to reflect this. Again without spinning this discussion
off into a tangent, there's probably multiple ways you could write that into
the law, but some language like "made available to the public for free or for
a fee" etc. or whatever the American legalese equivalent of that sentence
would be. IANAL

2\. You could center it around the registration date with the Library of
Congress. Again, in this scenario you do not actually automatically retain
copyright, and while it massively simplifies the letter of the law, it shifts
more of the burden to the Library of Congress to retain records. In this
scenario, you would file a registration with a full copy of the work or
specifications or some other means of defining it in the case of things like
statues. Probably the main advantage of this is that the Library of Congress
then has a full copy of the text, source code, blueprints, etc. that it can
then automatically publish itself upon the copyright's expiration.

Anything you do though, I would do it for a fixed term, say, just to pick a
random number out of the air, 50 years and no more. No renewals, just one
copyright term and that is it. You can choose to relinquish it to the public
domain before that time has come to pass but you could not extend it.

------
Mountain_Skies
A few years ago I wanted to read Virginia Woolf's novel "To The Lighthouse" so
I searched for it online and discovered it was public domain in her native
Great Britain but still under copyright here in the United States. If I
downloaded it from an UK server, would I and/or the owner of the UK server be
in violation of copyright? If I bought a reprint in the UK that was printed
after it entered public domain, would it be legal for me to carry the book
back home? What about having it mailed? Is it realistic to expect the average
reader to understand all of these details of various copyright laws across the
globe especially in an age where data flows so easily and it isn't even
obvious where from?

~~~
djsumdog
As the person buying the work, you'd think you wouldn't face potential
criminal charges; that this would be a civil case where the copyright holder
would have to sue the distributor. However we're seeing copyright cases play
out criminally now, with Kim Dotcom fighting his extradition from New Zealand.

~~~
njharman
Copyright violation is a crime. Has been since the right to monopolize the
public domain was enshrined in law (before copyright, there was only the
public domain). It can also be a civil matter. But the JAIL time and $500,000
per infraction are criminal penalties.

------
sohkamyung
I always bring this up whenever copyright extension is mentioned: Spider
Robinson's "Melancholy Elephants" [1], a worthwhile read on the effects of a
super-long copyright extension. The story itself is under a Creative Commons
license.

[1]
[http://spiderrobinson.com/melancholyelephants.html](http://spiderrobinson.com/melancholyelephants.html)

~~~
eat_veggies
That was a really enjoyable read! Thank you for this. Do you have any other
recommendations?

~~~
sohkamyung
Not for stories on copyright. Spider Robinson's story is the only one that has
stayed fresh in my mind.

If you are interested in general stuff on copyright, you might want to try
Cory Doctorow's books [1] which talk about information and copyright or the
articles he published on it at Boing Boing [2]

[1] [http://craphound.com/](http://craphound.com/)

[2]
[https://boingboing.net/tag/copyright](https://boingboing.net/tag/copyright)

~~~
eat_veggies
Thanks for the links! Do you have any recommendations for short stories and
books in general that you find cool? I haven't been reading much and I want to
change that.

~~~
sohkamyung
There are way too many on-line SF sites for me to recommend. Just pick one.
:-)

Personally, I'm old-fashioned and get my short-story fix via traditional SF
magazines like Interzone (UK) and The Magazine of Fantasy and Science Fiction
(USA).

If it's hard SF you're looking for, one site that might be worth a look is
Compelling Science Fiction [1]. Here's a HN post about it some time ago [2].

P.S. Okay, I'll recommend looking at Locus [3], which covers the SF world. You
might be able to get some good recommendations of current SF stuff from there.

P.P.S. This is self-advertistment, but I maintain a Goodreads list of books
I've read and would like to read [4]. It's mostly on SF and Science / Nature
stuff, but if you are interested in that, you may find some interesting stuff
on it.

[1]
[http://compellingsciencefiction.com/](http://compellingsciencefiction.com/)

[2]
[https://news.ycombinator.com/item?id=13106748](https://news.ycombinator.com/item?id=13106748)

[3] [http://locusmag.com/](http://locusmag.com/)

[4] [https://www.goodreads.com/user/show/5876605-kam-yung-
soh](https://www.goodreads.com/user/show/5876605-kam-yung-soh)

------
sharemywin
Disney now has until 2023 to figure out how to extend that date once again.
Enter Steamboat Willy, the first Mickey Mouse cartoon and the first animated
short by Walt Disney in 1928. Under the 1909 Copyright scheme, the Mickey
Mouse character had copyright protection for 56 years (with the renewal),
expiring in 1984.

~~~
msingle
The more relevant deadline is for Winnie the Pooh (first published in 1924).
Pooh is worth several billion dollars per year to Disney, so don't be
surprised if they try to change the copyright (again) in the next year.

~~~
iMerNibor
Wait, does the copyright not just cover the actual movie/videos/art/... of
that time, still having them own the character itself (since they're actively
using it)?

~~~
maxlybbert
I believe that officially only the movies, etc., would fall into the public
domain. But people can make derivative works of public domain items, so they
wouldn’t be limited to literal copies of Steamboat Willie. They could show
Steamboat Willie using a smartphone.

However, Disney also has trademarks on Mickey Mouse, etc., so using Mickey’s
likeness in commercial ways would still be a legal minefield.

------
jeremyjh
Sure, let's pretend congress won't do what they are paid to do.

We really have no chance on this issue, the interests in seeing works enter
public domain simply aren't commercial enough to supply the requisite lobbying
dollars.

~~~
Endy
Well, then the answer is to stop voting for people willing to take lobbyist
money, and for those that were already elected, make a public stink over it.

~~~
WaxProlix
This is so naive that it sounds like a joke or a parody.

~~~
SapphireSun
You can only say that without knowledge of the Bernie Sanders campaign. Prior
to that I'd have agreed with you. It was tremendously successful at
fundraising from small dollar donations by pushing policies that benefit the
many over the few. I don't see a reason why other campaigns can't pick that up
and run with it.

~~~
stmfreak
That was one guy amongst 536 politicians. And he lost because a corrupt system
scuttled his campaign.

~~~
SapphireSun
That is true, but the 535 other politicians are nearly all centrists or right
wingers. Politicians are beholden to their donors. Eliminate the elite donor
class, eliminate their interests being represented. I have some optimism that
the Democratic party will be reconfigured to some degree. It's either that, or
keep losing cyclically.

FDR won four presidential elections and scared the right so badly that they
got a constitutional amendment to limit future "damage" to two terms.

~~~
WaxProlix
So, GP says "Vote for people who aren't interested in taking bribes" and you
say "eliminate the donor class" \-- those seem like pretty distinct policy
recommendations. How are they related?

~~~
SapphireSun
GP's literal words were "stop voting for people willing to take lobbyist
money". The lobbyists and big donations / bundlers come from the same class of
people - the wealthy. These dollars come attached with policy positions that
favor that class both explicitly (in terms of policies that are explicitly
favored) and implicitly (policies that will not be given strong support, i.e.
various forms of redistribution).

The only way to run a modern political campaign is with lots of cash, so the
cash must be procured somehow. Your two options are to level the playing field
with public funding of campaigns (unlikely to happen in the wake of Citizen's
United) or for a candidate to raise small dollar donations. The Sanders
campaign proved that the latter is possible.

------
ekianjo
I still don't understand why we can even make legislative changes in copyright
work retroactively. Changes should only apply for whatever comes AFTER the
changes.

~~~
CobrastanJorji
There's a very solid argument. The Constitution explicitly says that Congress
has the right to grant copyright "[t]o promote the progress of science and
useful arts." Since extending copyright after a thing already exists cannot
possibly cause it to exist MORE, it doesn't seem to be within Congress's
power. And also, if Congress continues to extend copyrights by 10 years every
10 years, it also is no longer a "limited time."

Both of these arguments were put before the Supreme Court in 2003
([https://en.wikipedia.org/wiki/Eldred_v._Ashcroft](https://en.wikipedia.org/wiki/Eldred_v._Ashcroft)),
and the argument lost 7-2. Somewhat unusually, the it was not a party-line
decision.

~~~
ralfd
It is interesting to read Lessigs view and how he thought he lost the case:

[http://www.legalaffairs.org/issues/March-
April-2004/story_le...](http://www.legalaffairs.org/issues/March-
April-2004/story_lessig_marapr04.msp)

\-------------------------------

There were two points in this argument when I should have seen where the court
was going. The first was a question by Kennedy, who observed,

 _" Well, I suppose implicit in the argument that the '76 act, too, should
have been declared void, and that we might leave it alone because of the
disruption, is that for all these years the act has impeded progress in
science and the useful arts. I just don't see any empirical evidence for
that."_

Here follows my clear mistake. Like a professor correcting a student, I
answered,

 _" Justice, we are not making an empirical claim at all. Nothing in our
copyright clause claim hangs upon the empirical assertion about impeding
progress. Our only argument is, this is a structural limit necessary to assure
that what would be an effectively perpetual term not be permitted under the
copyright laws."_

That was a correct answer, but it wasn't the right answer. The right answer
was to say that there was an obvious and profound harm. Any number of briefs
had been written about it. Kennedy wanted to hear it. And here was where Don
Ayer's advice should have mattered. This was a softball; my answer was a swing
and a miss.

------
joering2
The article doesn't go into how Disney was able to preserve it for so long...
and continue. So if I copyright something today, can someone explain how I can
make sure it is still covered in 2108 ?

~~~
lisper
1\. Make a ton of money

2\. Use the proceeds to bribe politicians to pass legislation to extend the
copyright period

3\. GOTO 1

~~~
JonathonW
Strictly speaking, Disney's already done most of the hard work for you--
barring some sort of massive public policy reversal (unlikely) or societal
collapse (probably slightly less unlikely), all _you_ should have to do (under
current copyright law) to keep something protected under US copyright law
until 2108 is just not die before 2038.

Or, if you published something today as a work for hire, it'd be covered until
2103. Which isn't quite 2108, but surely Disney and their congresscritters
will get you that extra five years at some point before it goes into the
public domain.

~~~
pls2halp
Realistically, you’re covered until Disney goes bankrupt for any work you
publish.

------
AnimalMuppet
2018 is the last year of the drought... unless the rules change again.

Here's how it's likely to happen. Somebody will float a trial balloon to
extend copyright. We will try to oppose it. Because it's an election year, our
opposition will have some leverage - the threat of immediate retaliation on
those who don't vote the way we want. If our opposition is loud enough, the
bill will stall...

... until after the election. Then it will pass, despite the howls of outrage,
because then we'd have to remember who betrayed us for two years before we can
do anything about it, and they suspect that our memories aren't that long.
(And if our memories _are_ that long, we'll have two years of other issues to
dilute our outrage on this one.)

I hope I'm too cynical.

------
regulation_d
I think we're losing sight of the goals of intellectual property law.

Society as a whole benefits greatly from a rich public domain. The starting
point in IP law is that there are no rights in ideas. Then from that starting
point, we start to carve out exceptions that make sense from a market
perspective.

We grant trademarks, because the market benefits from being able to identify
the source of a thing.

We grant patents and copyright protection, because they incent innovation, and
innovation is good for the market.

The protections that copyright law affords have more than rewarded Walt Disney
for his innovations. The Constitution specifically requires that copyright
protection be limited in term. In my mind, the time has come for Mickey to
drop into the public domain.

------
cornyNetHandle
How any new legislation on this issue may play out over the next year, brings
to mind the old theological saw regarding an irresistible force meeting an
immovable object, given the large political incompatibility of the current
players.

~~~
coldtea
There's no "large political incompatibility between the current players" when
it comes to passing out corporate favorable legislation.

~~~
cornyNetHandle
You may have a point there, but Disney and the Trump administration are, at
least publicly, on very different sides in the culture wars currently
dominating political discourse.

~~~
dragonwriter
The culture wars are largely a distraction behind which class war by the rich
against everyone else is carried out. Most forces who seems strongly one on
side or the other of the culture wars are on the same side of the real war.

------
shmerl
95 years after publication is crazy. Copyright term should have never been
that long.

~~~
rabidrat
Originally it was 14 years. It's only been extended (gradually) over the past
50 or so.

~~~
njharman
It's been extended, regularly, several times. The recent 1976, 1998 have
extended it massively (doubling it) and applying their extensions,
retroactively much further back.

[https://en.wikipedia.org/wiki/File:Tom_Bell%27s_graph_showin...](https://en.wikipedia.org/wiki/File:Tom_Bell%27s_graph_showing_extension_of_U.S._copyright_term_over_time.svg)

~~~
ataturk
The 1998 one was particularly egregious--we were right on the verge of having
some decent content in the public domain and wham! It's not that I think
everything should be public domain, but the current duration is absurd.

------
solomatov
IANAL, but as far as I understand the law this is incorrect:

> Films are literally disintegrating because preservationists can’t legally
> digitize them

This is fair use. archive.org works on legality of such activity.

~~~
lostapathy
Sure, but the economics of preserving something you can’t redistribute are
tough, especially as you get out into less popular media. If you could sell
copies of those preserved works, it would provide a means to finance the
preservation efforts.

------
whiddershins
One thing I’ve never understood about the whole Disney/Mickey Mouse discussion
is Trademark doesn't expire.

If Disney can hold a trademark on Mickey Mouse, all the old movies could enter
the public domain but you still wouldn’t have a right to make your own Mickey
Mouse movies or t-shirts.

So it seems what they are really trying to protect is Fantasia or whatever.
Specific movies. Not iconic characters.

------
sixdimensional
I still wonder how much faster parts of the world who do not honor the
traditional IP laws can innovate? Not that I'm encouraging ignorance of IP
laws, just curious about what happens differently in their absence... how does
the system work then?

~~~
djf1
Ignorance of IP laws would help the developing economy, while hurting the
developed economy. Copying is cheap, original invention is expensive, and
developed countries have more to lose.

In a somewhat relevant WTO dispute between US and China,

"The International Intellectual Property Alliance, a coalition of U.S.
entertainment and software industry groups, has claimed piracy in China costs
them more than $3.7 billion in lost sales." [1]

[1] [https://www.reuters.com/article/us-china-usa-wto/china-u-
s-t...](https://www.reuters.com/article/us-china-usa-wto/china-u-s-trade-
barbs-over-wto-piracy-case-idUSTRE52J3T920090320)

~~~
bighi
While I'm not saying that is a lie, anyone can claim anything.

I can claim piracy in China costs me 18 billion dollars.

~~~
vorotato
Also I think it's an absurd argument that just because someone pirated your
content that they would necessarily buy it. A lot of content is pirated
specifically because they think it's not worth buying.

------
vorotato
If you can't survive after 20 years without any competition, perhaps you don't
deserve the copyright in the first place.

------
darepublic
When is mickey mouse due to enter Public Domain?

~~~
naravara
Mickey is trademarked. Old Mickey Mouse movies, like Steamboat Willie, will be
free to copy and distribute but I don’t think other people will be permitted
to produce new works starting Mickey Mouse.

It’s a bit of a legal gray area. I don’t think anyone has settled the question
about whether trademarking characters runs afoul of the constitutional
prohibition on perpetual copyright.

Based on how much money Disney has put into absorbing every trademarked
franchise ever (Marvel, Star Wars, etc.), it seems like they’re willing to bet
on those trademarks being enforceable.

~~~
darepublic
Ah ok. Does international law vary on this? Can Disney sue IP violators in
other countries over this and who would enforce it

~~~
sohkamyung
Yes, they can and they have. You can search for articles on Disney suing
people in places like China for selling or featuring images of Mickey Mouse
(or lookalikes).

A perverse effect (I think) of trademarks is that the owner of a trademark has
to sue to protect it from infringement: otherwise, it becomes a common mark,
not a trademark, and is usable by anybody.

------
ataturk
The copyright mess is another example of how corporations have sucked the life
out of America. Disney (and others) lobbying for that law is perhaps the
definitive example of regulatory capture and how it has an affect on all of
us. It makes citizens cynical, breeds distrust in our (wholly bought)
government, and it illustrates how tyranny can arrive from any direction, not
just the expected ones.

------
Testudio
You know why patents and drugs have short terms, but copyright is very long?

Because the thing it is protecting is a luxury. It is unnecessary. No one will
die if Mickey Mouse remains copyrighted in perpetuity, and the progress of
humanity won't be stunned because you can't make youtube clips out of Winnie
the Pooh.

You can just stop buying Disney merchandise if you don't like them. There is
more public domain art than you can consume in a hundred years. Disney will
stop lobing for copyright extensions once it no longer profitable.

Oh, and stop using Facebook while you are at it.

------
Asooka
The concept of "Public Domain" sounds absolutely bonkers to me. You own
something and then suddenly you no longer own it. It would be like if you woke
up one day to see a family of squatters living in your house, that you can't
get rid of, because the person who built your house died 70 years ago and your
house is now "Public Domain".

We should just get rid of the public domain exception and recognise
intellectual property as normal everyday property, not something that can
magically becomes ownerless one day. Communism has been tried and it doesn't
work. Let's not repeat the mistakes of the past.

On the other hand, I do hear the plight of preservationists &c. There should
be a lot more rights granted to people to use copies of other people's
property. For starters, all non-commercial use should be allowed, so that old
movies could be digitised and stored in better formats. After all, the studio
doesn't own the tape or the DVD that contains the movie, it owns the movie
itself and the type of media it's stored on shouldn't matter. This probably
would also mean that noncommercial free peer-to-peer filesharing would also be
legal, but honestly, if you can't compete with torrent sites, which blast
thirty porn popups and show you a dozen false download links, your business
probably deserves to die.

~~~
Can_Not
> It would be like if you woke up one day to see a family of squatters living
> in your house, that you can't get rid of, because the person who built your
> house died 70 years ago and your house is now "Public Domain".

It wouldn't be like that.

