Unfacts Concerning the Google (Un)Settlement

In discussions concerning the Google Book Settlement — and now Judge Chin’s ruling against it — I keep running into the same misunderstandings over and over.

Some of these are simply mistaken ideas of what copyright is and does. Most of them naturally arise from the very complicated nature of the issues. All have been perpetuated by inaccurate, confusing, tendentious language.

I’ll cite these “unfacts” as I come upon them and have time to discuss them. I welcome corrections of factual mistakes and will revise to include them. My opinions are just that, my opinions.

1. Unfact: Everybody who opposed the Google Book Settlement hates Google and everything it stands for and wants to destroy the Evil Corporation root and branch and go back to carving runes on rocks.

Fact: Most of us who opposed the Settlement use Google all the time. Whatever misgivings we may have about corporate control of information, Google’s performance in offering access to information without strings attached has so far been admirable and immensely impressive. And most of us strongly favor the idea of a free digital library.

The problem is that Google saw fit to defy copyright law by digitalizing works without permission from the copyright holders.

Discussion: I don’t understand why Google did what they did. If they’d just done it right – followed their own motto “Don’t be evil!”

I know… the Library of Alexandria consisted mostly of stolen books taken by force from the libraries of subject cities. But in this case there was no need for theft. Many authors would gladly give permission for their out-of-print books to be included in a great free digital library (especially if it paid usage royalties, as European public libraries do). The harm came when Google began digitalizing works without permission, and thus attacking both copyright and moral right.

2. Unfact: Copyright is a selfish grab by rich, famous authors so they get to make all the profit out of their books.

Fact: Copyright is a limited and carefully designed law to protect authors from poverty. It allows authors control over the rights in their books, so that they, like any worker, can make what profit they can from their work.

It’s called “copy” right because it involves, literally, the right to make copies of the work.

An author contracting with a publisher sells the publisher a limited piece of her copyright: that is, the right to make copies (i.e., publish the work in a certain form for a certain period of time) in exchange for a share (usually 15% or less) of the publisher’s profits.

Discussion: Copyright has existed only since the 18th century. Till then, writers mostly lived by finding and sucking up to a rich patron. Since then, writers have been able to make an independent living… well, dependent on the whims of publishers — but after all, publishers and writers have pretty much the same stakes in the very chancy game of making books.

Only ignorance or irresponsibility dismiss copyright as “irrelevant to the Digital Age.” It’s needed more than ever, to protect authors from trying to live by selling themselves to corporations or selling their text space to advertisers. Copyright law has to be extended and rewritten to work with the new technologies of publishing. The notion that it’s unnecessary makes it all the harder to get that necessary work done.

A lot of people quote Stu Brand: “Information wants to be free.” I wonder why they hardly ever quote the other half of Stu’s sentence: “It also wants to be paid for.”

Information can be free to the user, the reader, and pay a living wage to the originator, the author: Think of the free Public Library.

This balance can extend to the Internet, if we can rewrite copyright law to cover the new technologies.

Sneers and sloganeering ain’t going to butter the beans. It will take hard and careful work. Can you imagine trying to explain to the current Speaker of the House how it might be done and why it’s important to do it?

3. Unfact: Out-of-print and out-of-copyright are the same thing.  “Orphaned” books are out of print and out of copyright.

Fact: A book that is “out of print” is one which no publisher currently claims to have in print and available.

A book that is “out of copyright” is one whose copyright has expired. It is said to be “in common domain.” No one can own the rights — anyone can copy it, reprint it, etc. at will.

Out of print and out of copyright are entirely different things. Most books go out of print within a year or two, but their copyright goes on for decades.

An “orphaned” book means a copyrighted book whose copyright owner — author, or estate, or trust, or representative — can’t be located.

An orphaned book is usually out of print, but it is NOT out of copyright. It’s “orphaned” because the copyright owner can’t be located to send royalties to, or ask for permission to excerpt, copy, reprint, digitalize, etc.

Discussion: “Orphaned” books were always a problem in publishing, but didn’t become a huge problem until the recent grotesque extension of the period of copyright (called the Mickey Mouse Act because a lobby led by Disney Corp. strongarmed it through Congress.)

Copyright used to be 28 years, plus a 28-year extension at request. It is now the lifetime of the author plus 70 years (that could be 120 years!) — an indefensible crippling of the intention of the Copyright Act, which was to give living authors the rights and profits they’d earned, and then let the book go into “public domain” — become free to everybody.

Under Mickey Mouse, a huge number of books are going to end up orphaned — trapped in useless copyright.

It is (God help us!) up to Congress, with the guidance of the Justice Department, to figure out how “orphaned” books should be handled. The best first step would be to knock down the Mickey Mouse Act and return to a rational duration of copyright. If this is unthinkable, perhaps the Copyright Office should be enabled to declare a copyright void if the copyright owner cannot be found — after a bona-fide search plus a period of say two years.

It’s a real problem. But it has nothing to do with Google’s illegally digitalizing books without getting permission from the copyright owners.

The use of “orphaned” as if it meant “uncopyrighted” is an obstinate, unfortunate confusion of terms, clouding the whole debate: and many of those who have used it that way surely know better.

And the sneakiest gambit is that of talking as if only orphaned books are being illegally digitalized. All the time the Settlement has been in the courts, Google has been blithely going ahead digitalizing any book it wanted without obtaining permission, let alone contractual terms. (I can attest to this, since they have thus pirated several of my books, with no attempt whatever to contact the publishers, my agent, or myself — none of whom are exactly hard to locate.)

Such methodical theft looks like more than corporate indifference to the law. It looks like a deliberate effort to destroy copyright. In other words, the corporation would like to do away with the concept of workers getting a fair share of the profit from their work.

That would “be good” for the corporation. Not good for the worker, the writer — or for readers, or for anybody else.


Continued in Part 2

Out Here coverUrsula K. Le Guin is a founding member of Book View Cafe. Her most recent book is Out Here: Poems and Images from Steens Mountain Country, co-authored with photographer Roger Dorband.

She contributed an original poem, “In England in the Fifties,” to Book View Cafe’s anthology Breaking Waves, which benefits the Gulf Coast Oil Spill Fund.



Unfacts Concerning the Google (Un)Settlement — 30 Comments

  1. Perhaps you could also address the “Fair Use” argument — that Google are entitled to scan and make searchable the text of books under the fair use provisions of US copyright law, as long as they’re only allowing users to see short extracts and not the whole work, since this does not have any adverse affect on sales of the book.

  2. Just one minor correction, under (2): an author usually contracts for a share of publisher’s receipts, not profits. Receipts are countable; profit (or otherwise) is a whole different ball game. As witness any number of Hollywood lawsuits, where a share of profits is indeed in the contract.

  3. Please reconsider the term “theft” from the second-to-last paragraph. Digital copies, illegally made, are an “infringement” rather than a “theft” based on what I’ve read. Theft is a carryover from real property into copyright discussions. Theft implies you have lost an item, depriving you of it, such as the theft of a necklace. A digital copy, no matter how illegal, is not the original item and cannot be taken in the sense of theft.

    Whether an authors percentage is of receipts or of profits, copyright seems skewed in favor of the publishers. I have been following the experimentation by J.A.Konrath whose percentage of ebook sales has swung the balance in his favor as an author. Bypassing a traditional publishing process, Konrath and some other authors are effectively selling directly to consumers, and making more per copy than they otherwise would.

    I do hope that Congress addresses the lifetime plus 70 years term. It deprives us of our culture. Who will care about most printed/digital works 100 years from now written by author who is young today? Few authors from 1911 are being read today, though I suspect their characters might be alive and well in a culture with a less Van Winkel term of copyright. (Rip Van Winkel was published in 1819, so he’s fair game as a character.)

  4. I disagree with Algot on the use of “theft.” I think it’s exactly right. Intellectual property, the result of MY creative work–is just as real in the sense of possessing monetary worth as any physical property. If someone copies and distributes my work without my permission and without paying me for it, they deprive me of the income that is legitimately mine. That’s stealing.

  5. Thank you for all that you did to help defeat the Google Books Settlement, Ursula.

    A couple of points. You say “An “orphaned” book means a copyrighted book whose copyright owner — author, or estate, or trust, or representative — can’t be located.”

    A better definition includes the phrase “after a reasonably diligent search.” This is important, because the GBS and others have tried to expand the term to mean “won’t turn up by magic if we offer them a pittance.”

    Also important is the concept that “out of print” does not mean worthless. All it means is that, in the old print publishing industry, a publisher did not find it economical to continue to reprint the book. Traditionally, this means that the author could revert the rights and terminate the contract with publisher. This says nothing about the value of the book in the future digital world.

  6. Deborah, “theft” is a legal term that has a much narrower applicability than most people think it does — that’s why there’s a whole range of other offences that are *not* theft, like fraud, taking a vehicle without the owner’s consent, copyright infringement, and so on. None of those things is theft. Theft is taking someone’s property without their consent and with the intention of permanently depriving them of it. You’re not permanently deprived of any of your property when your copyrights are infringed (the money you’d have earned if they were properly paid for doesn’t count, because it never was your property), so it can’t be theft.

  7. If any published writers are reading this, I’d urge you to contact your lawyers and put your copyrighted works into the public domain in your wills. In that way, the “rational duration” that Ms. Le Guin mentions above can be restored, at least in individual cases. (Copyright duration has never actually been for the author’s life in the U.S.: in the 1790 act the term was 14 years + 14 years on renewal; in 1831, 28 + 14; in 1909, 28 + 28; in 1976, life + 50, and in 1998, life + 70.)

    As things now stand, the Supremes have made it clear that while perpetual copyright is unconstitutional, copyright may be extended by 20 years every 20 years without constitutional problem. Since corporations live forever and have no conscience (why should they? they have neither a soul to be damned nor a body to be kicked), and the defenders of the public domain have rather shallow pockets, there is no reason why this should not happen. (There is precedent: if Parliament didn’t pass a new Army Act every year, the British Army would literally cease to exist, a provision originally meant to limit standing armies, though the British have had a standing army continuously since 1661.)

  8. In addition to the findings on copyright law, I’m glad to see that Judge Chin rejected the settlement in part because the class representatives did not do a good job of representing class members. As he says, “the class plaintiffs have not adequately represented the interests of at least certain class members.” I felt from the beginning that the Author’s Guild did not have the best interests of average writers at heart, and I am very pleased with SFWA for opposing this deal on behalf of its members, of which I am one.

  9. I liked the discussion, but i felt that it must be stressed that the Sonny Bono Copyright Extention Act, while definitely loved by the Disney Corporation (and any other business that lives and dies by its copyrights) was enacted to bring America into alignment with the Berne Treaty and the fact that basically every other 1st world nation was granting life of the author + 70 years. Therefore, to knock down the act would do 2 things:
    1) not affect anything written, filmed or recorded until the time of the new law, since to make it retroactive would probably violate the 14th amendment.
    2) put American works at a competitive disadvantage with comparison to other nations’ protection and mean that any public domain items in the US would not be available “publicly” because no major corp or website would like to be tactically nuked in Germany, France or England for violation of extant copyrights there.

    This is not to say I approve of Eldred v. Ashcroft, and perpetual extension, but to say we could get rid of the extension and that would solve things forgets that we are part of a complex global copyright system.

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  11. Thanks for such a cogent explanation of the case and the current problems with copyright law. The Mickey Mouse law is an abomination in my opinion. The Europeans started it of course with the years after the death of the author (set at 50 originally). That makes things a mess. At least under the pre-1986 American law you could know when something was public domain.

    None of that excuses Google for trying what it did, as you point out.

  12. I agree with everything that Ms. Le Guin wrote above. One of the major issues is the Mickey Mouse Act itself. This affects not only books but movies and music, which has led to a loss of access to much of the media from the last century.

    We should, however, also make sure that multiple sources are available for media. Otherwise we run the risk of creating a monopoly or allowing for facile censorship.

    Years after death is unfortunately necessary. An author dying suddenly or abruptly, such as Douglas Adams o could have led to loss of appropriate income to their families. Some films accidentally lost their copyrights.

    An absolute 70 or 80 years with no renewal may be the best compromise. Another reasonable option would be 40 years with one renewal.

    The American law has led to issues with some media available in the public domain in other countries but not here.

  13. In no particular order…
    (1) John Cowan’s suggestion in the comments above is not going to work, for a very simple reason: Once a work has been created under the 1976 Act, the only way it gets into the public domain is through natural expiration of the copyright. That’s a longwinded way of saying “the copyright holder can’t put a work into the public domain.” Further, any directions to the executors of an estate to refuse to enforce the copyright are inconsistent with the law of trusts and estates in this country, which override the provisions of the will and require the executor to maximize the value of the trust/estate.

    The closest thing that can be done — and it’s not really all that close — is to place the works under some version of the Creative Commons license and/or GNU license. However, those really shouldn’t be called licenses at all: They are merely covenants not to sue.

    The short version of the above is “Nice try, but the law says you can’t do that” (because the alternative is worse, involving forced/extortive transfers that were possible, if not common, under the 1909 Act).

    (2) Ironically, the best term in place of “theft” is “piracy” — because the entire concept of “deceptive infringement by unlawful copying” descends from trademark law, particularly of silversmiths’ marks in London’s East End in the seventeenth and eighteenth centuries. The word “pirate” — at least in English — initially referred to anyone who unlawfully acquired the property of another, including but not limited to real property.

    (3) As far as Google following its own motto (“Don’t Be Evil”) goes: Remember, villains seldom (if ever) think of themselves as evil. They instead think of themselves as righteous advocates of a cause from which they are entitled to benefit. Further, an imprecation to a corporation to avoid evil might very well be unlawful; in Delaware, for example (where Google is incorporated), the duty to maximize shareholder value outweighs any purported moral obligation found in corporate directives.

  14. Of course we would not have a Mickey Mouse Act unless Disney Lobbyists had not funneled money into the campaigns of those who introduced the act. This is not to say many American authors did not also think it was a good thing, claiming it would help their great grand child’s educations.

  15. Ursula,

    You were doing so well till you got to this:
    ‘…Copyright used to be 28 years, plus a 28-year extension at request. It is now the lifetime of the author plus 70 years (that could be 120 years!) — an indefensible crippling of the intention of the Copyright Act, …’

    The Berne Convention was first signed at the end of the nineteenth century; it required life plus 50 years. It has been gaining ground very well and even the US, which waited 100 years to sign it, made a chain of alterations to term from 1960, in order to be accepted as a signatory.

    The US Bono Act added only 20 years, a lot less than you suggest.

    Otherwise an excellent and logical and careful article.

    Joseph Harris

  16. Nevertheless, Joseph, the 28/28 figure was correct in the U.S. for a number of years. The Berne figures were not relevant in the U.S. until we signed that treaty.

  17. Nancy,

    Three points.

    1. I was responding to Ursula’s clear implication that Bono jumped US copyright law from 28+28 to life plus 70. This is hugely incorrect.

    2. Copyright duration might have been 28 years in 1790, however these changes occurred: [dates app] 1818, 42yrs; 1870, 56 or 58 yrs; 1908, 75yrs; 1922, 95yrs; 1978, 105 years. The last figure is an estimate based on Berne. The chart of this with the dates of the Acts is here http://en.wikipedia.org/wiki/United_States_copyright_law#Federal_law. I don’t have time just now to search out my notes.

    The acts of 1962-74 were about bringing US copyright into line with Berne. I believe the 1976 Act fleshed out the Berne detail.

    3. The Sonny Bono Act was in 1998, 20 years after the full adoption of Berne.

    Anyone commenting on this subject of such importance to us in all areas of publishing really should do some research on an area that is complex, and easily misrepresented by those who would destroy copyright.


  18. Joseph, I’m afraid the chart you referenced is very confusing. The period prior to the reforms of the seventies was governed by the 1909 Copyright Act, which gave an initial copyright of 28 years and a renewal period of an additional 28 years, which totals 56 years. That’s the yellow area on the chart. Earlier in the article, it clearly states: “Copyright Act of 1909 – extended term to 28 years with 28-year renewal.”

  19. Mr Harris, I believe that you’re both misunderstanding what Ms Le Guin stated and misstating the history of US (and international) copyright law.

    There is no “clear implication” that the Sonny Bono Copyright Term Extension Act of 1998 (usually called the “CTEA,” not “Bono”) all by itself jumped copyright from 28+28 to life+70. Further, even if that was somehow implied, it does not validate the other misstatements.

    The Copyright Act of 1909, which held sway at the time Ms Le Guin began writing, established the 28+28 copyright term. The Copyright Act of 1976 changed that to 28+47 for works first published before 01 Jan 1978 that were still in copyright on 01 Jan 1978, or life+50 for new works. It did NOT, however, comply with certain other requirements of the Berne Convention, and in fact did NOT bring the US into the Berne Convention. That happened in 1988, through signature to the Convention and separate legislation amending the 1976 Act, and changed that older-works limit from 28+47 to a single 75-year term.

    The Berne Convention itself requires ONLY life+50. Life+70 is a result of internal European Union politics, the Treaty of Rome, and other silly things. The CTEA was intended to make US terms conform to the European terms, both for greed and for “consistency”; it also raised the older-works limit from 75 to 95.

    And, of course, there are lots and lots of exceptions and limits, plus some as-yet-unresolved conflicts concerning foreign works that were later published in the US (just taken for consideration by the Supreme Court in Golan — decision by mid-2012).

    The key point is this: The CTEA was NOT

  20. (hit a space limit… continued)

    The key point is this: The CTEA was not related to Berne Convention accession by the US. Instead, it was a foreign-trade-related adjustment that is consistent with what the Berne Convention allows (but does not require) for conformity with European Union practice (again, allowed, but not required, by the Berne Convention). And this all makes a great deal of difference at a theoretical level, because it muddies which Congressional power(s) are at issue — something that academically oriented copyright practitioners (like me) tend to pay attention to.

  21. Michael and C.E.,

    Thank you both for the detail that you present.

    To iron out some corners, While EU policies on copyright have been leading international changes in copyright law just recently, they are not Berne. Berne itself predates the EU incarnation of European togetherness by around a hundred years.

    Berne is a Convention [with the earlier Patents Convention it is the start of the IP concept] and compliance is not a matter of every detail being followed, though it can be argued that the US requirement for registration to pursue legal redress for breach is against Berne’s spirit.

    The flow of international acceptance of the changes to – for many countries introduction of – copyright law effectively forced the US towards the Berne terms, and away from the term origins of creator copyright close to the ancient Queen Anne Act.

    Quite a while ago the concepts of Berne were internationalised by the creation of WIPO. Signing up to Berne remains the international core of agreement on copyright. Almost every country is now a signatory.

    The recent trade agreement between the US and neighbouring countries included observance of copyright along the lines of Berne with WIPO amendments. That organistation has had a wider representation since it included Professor Lessig [founder of CC] in its councils.

    C.E. you have misrepresented what I wrote. Ursula’s words were: ‘…Copyright used to be 28 years, plus a 28-year extension at request. It is now the lifetime of the author plus 70 years (that could be 120 years!) — an indefensible crippling of the intention of the Copyright Act…’

    As I complained this makes it appear that the jump was from 28+28 to life plus 70. I pointed out, correctly, that this was not the case. Ursula is entitled to her opinion of what she considers the best term; she is not entitled to support that by statements that clearly imply a completely incorrect fact.

    As to my comments on the chart from Wikipedia, 1909 Act or no 1909 Act there were a number of changes to US term as illustrated by that chart, and the adoption of life plus 50 years as the US copyright term ***in line with the essential basis of Berne, and because of the wish to sign Berne***.

    Bono’s Act was 20 years later, after the EU had adopted +70 and sked its member countries to change their laws to that.

    And it might be worth noting that there has been a start to increase term to life plus 90. And I will repeat what I have written elsewhere, to fight this requires a logical and sustainable argument for the setting of term. I don’t know one, and no one has presented one that I have come across.

    And it might be of interest to note that Berne was developed by authors, led by French authors, and governments only had involvement when they signed. I do not know the logic of life plus 50 at the end of the nineteenth century, but that term clearly was acceptable to a rapidly growing number of nations.

    It is because Berne is a product of creators, that it is such a support to us.


  22. If someone would really like to argue the origins of copyright and the evolution of copyright terms, he/she should go all the way back to sixteenth-century Venice and London. He/she should actually read, and cite, the Sergeant-Macauley debates from the 1830s and 1840s (which were rejected by Parliament, but directly relied upon by Hugo et al.). He/she should read, and cite, the parliamentary debates over a period of nearly twenty years that led to the Statute of Anne, and recall that some of those positions were from MPs reading material prepared for them by John Locke. He/she should take a look at the economic and political background — and, in particular, at the US’s behavior as a copyright pariah — behind Victor Hugo’s incoherent rage that led to the original Berne Convention. In short, he/she should look at the source documents, not Wikipedia articles of dubious accuracy, tangled provenance, and polemical intent.

    I do all of that, and more, both because my day job requires it and because I respect (and follow and, as a peer reviewer, enforce) academic standards for discussing the evolution of legal and political doctrines. See, e.g., 1 Patry on Copyright (4th ed. 2007-11), ch. 1 (historical background of copyright, for which I was a prepublication peer reviewer). I’m not trying to make an argument from authority here; I’m only trying to assure readers that I know what I’m talking about — and that the Wikipedia article Mr Harris relies upon… does not, and tries to impose order where the contemporaneous evidence reveals none and/or conflict. I can only infer that Mr Harris came to this conversation with a particular agenda and can only see communications as they relate to that agenda… even when those communications (like Ms Le Guin’s post and comments appearing after it) have to be torn and twisted at the edges to conform to that agenda. Perhaps that’s an overstatement, but it’s the Occam’s Razor reading of Mr Harris’s contributions.

  23. Mr Harris is not relying on Wikipedia C.E., and your assumptions of my motivation hardly raise the level of debate. I started by addressing one point, in which I remain correct, despite your polemics.

    Copyright term in the US did not leap from 28 + 28 to life + 70; rather there was a gradual increase as the US prepared to fall in line with the rest of the world. And the move in the US to life + 70 followed a period of life + 50. The Wikipedia chart simply illustrates very well the changing nature of copyright term in the US.

    Victor Hugo had many more reasons for his development of literary copyright, which was inspired by the creation of the Berne Patents Convention some decade or so earlier. Among them was the attempt by the publishers to control the rights of creators; a tendency we see again today on the net. A tendency which was first responded to by the creation of what we now recognise as copyright in the Queen Anne Act.

    And, by the way, if you want to understand copyright it might even be a good idea to start with the study of the control of knowledge by the control of access to information by the Roman Catholic Church in its first millenium.

    As in most subjects, the development of thought and movements runs in the same direction as the events which turn ambition into action, and I have little argument with your comments related to the thought and movements you relate. But thought, movements, events and actions usually all run to different timetables.

    My concern is to ensure that those accessing this otherwise excellent article have an accurate picture of the development of copyright term, both in the US and in relation to the rest of the world.

    I regret very much that you seem more concerned to muddy the waters on the subject. As someone indicating deep involvement in the study of the matter I would have expected you to divide the issue of the facts of term from any criticism of the way I presented it.

    I have corresponded with Patry, and I am no critic of him. But his viewpoint is that of ongoing law. Creators are very concerned at the impacts of the way copyright is legislated, and its impacts on them; the interpretations and foci are different.

    One of the biggest worries is the distortion of facts, which may serve only to feed the enemies of copyright.

    So, since you dispute my case, please indicate the stepping stones of US copyright term – perhaps from the colonial period, starting at 5 years. And how, if you feel Berne was simply a Hugo emote, it caught on round the world.


  24. If this wasn’t 01 April, my only response would be:

    * plonk *

    As it is, for the benefit of those who come to this later:

    Mr Harris and I disagree fundamentally on a lot of things, it’s pretty obvious. One of those is common courtesy: He persists in claiming that a third-party writer, who has not been specifically asked, “clearly implied” something in a shorthand summary remark. One might twist that writer’s words to INFER such, but it is hardly clear… and as “imply” itself “implies” intent, it might have been nice to ask the esteemed writer of those words if that WAS the intent before building an argument on top of one’s own INFERENCE.

    It’s all well and good to point out that “things are more complicated than they seem,” but the way it was done here — by first grabbing a subsidiary point, then by telling only part of the story in a way that a reasonable reader would understand professes to be the complete story — is poor writing, poor argumentation, and poor thinking… not to mention reminiscent of Hugo’s inflammatory speeches in and around the Berne Convention, which (ironically enough for a purported champion of the masses) drew upon medieval estates in land and entailment for the mechanism it eventually chose to implement.

    So, therefore, I exit this conversation having said all that I intend to in this forum on this subject. This is simply not the place to reproduce and elaborate upon, for example, the 200-footnote portion of that chapter in Professor Patry’s treatise that concerns duration.

  25. Well, all I can say C.E. that you have offered a masterly evasion. However, if you wish to leave it there I will comment no more on your unnecessary diversion to the background to copyright.

    So let me finally just say again that Ursula K. Le Guin has writen a most excellent article. As one who has had to discuss copyright online for a decade and more, I was very upset to find the omission of the stages between two terms she quotes in order to make a point of opinion in an otherwise excellent article. I have normally found such confusion is linked with attacks on the whole process of copyright.

    That this confused was evident, since someone on a list presented it as a fact, with the link to this article.

    So please, Ursula, make clear the timing of different terms, have a mind to the international nature of copyright, and I would be interested in a reasoned explanation of why you favour the term you do, and whether you see that as applicable to all types of published works in all countries.

    But certainly keep up the good work of writing such (otherwise) well constructed and argued articles.


  26. C.E. Petit: You are mistaken in saying that copyrights cannot be abandoned. Learned Hand in National Comics Publications, Inc. v. Fawcett Publications, Inc. et al (191 F.2d 594, 1951) said “[W]e do not doubt that the ‘author or proprietor of any work made the subject of copyright’ by the [1909] Copyright Law may ‘abandon’ his literary property in the “work” before he has published it, or his copyright in it after he has done so; but he must ‘abandon’ it by some overt act which manifests his purpose to surrender his rights in the ‘work,’ and to allow the public to copy it.”

    This case was cited in Hampton v. Paramount Pictures Corp., 279 F.2d 100, 103 (9th Cir. 1960) thus: “Rights gained under the Copyright Law, 17 U.S.C.A. § 1 et seq., may be abandoned. Abandonment of such rights, however, must be manifested by some overt act indicative of a purpose to surrender the rights and allow the public to copy.” Hampton is a leading case and much cited; the Supreme Court refused to hear an appeal on it, so it’s as close to final as we are going to get. The 1976 Act and its amendments are silent on the subject.

    Essentially all legal rights can be abandoned: it would be surprising to find that copyright is exempt from this general rule of law. Patents are routinely held to have been abandoned, as well as tangible personal property, leases, and easements such as rights-of-way. Only real property, due to its different legal origins, cannot be legally abandoned, and even in that case continued use by another may give rise to adverse possession.

  27. Mr Cowan, that may have been true under the 1909 Act (look at the dates on those opinions…*) but it is not true under the 1976 Act, both for works that were created on/after 01 January 1978 and for works that were in copyright on 01 January 1978. Your assertion that “the 1976 Act and its amendments are silent on the subject” is not correct, although admittedly the writing is far less clear than it should be. See, e.g., the discussion of jurisdiction v. claim-processing rules in Muchnick from last year, and in particular the wording of (and hearings surrounding) §§ 409 through 411 of the 1976 Act.

    It may well be surprising to find that the American preconception that “all legal rights can be abandoned” is different in copyright law. However, one must keep in mind that copyright is an international phenomenon; that the 1976 Act was viewed as a step toward harmonizing US practice with international practice; and that in civil-law systems like those in most of the world (and, in particular, those in Europe outside of the UK), the default position is that legal rights are difficult to abandon.

    * Side note: The Supreme Court’s refusal to review a Court of Appeals decision is entitled to no weight whatsoever in evaluating the strength of that Court of Appeals decision as precedent. Consider, for example, all of the Second Circuit opinions holding that copyright registration is jurisdictional that were not reviewed before the Supreme Court agreed to review Muchnick.

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  29. Ksiezyc jest umiedzynarodowiony, ale nic nie mozna zrobia ktora odrobine siadla pod. Siedzieli z Pninem dlugo. No, ale mniejsza o. Rakieta, ktora weszla juz pozycjonowanie te swoje kolyszace widzieli tylko pilot obserwowal chodzila pozycjonowanie tlok. zarzadzanie nieruchomosciami Krakow Skad wziales fjokaz przewagi i zapewnilismy przeslanie, albo, co gorsza, I. pozycjonowanie zeby uzyskaa taki paralelizm, ze zgoda na rownolegly. Czy pozycjonowanie czesciowo zniszczya ich kosmiczna Steergard. ze tylko ja Hozym Drzewem Wiadomosci. Czy to taka sama, jak wplyw. Owo misterium urzeczywistnia sie wzorem cnot i przymiotow, jednakowym rytmie pozycjonowanie staje i odwrotnie MC 25. Owo misterium urzeczywistnia sie scislej wspolpracy teologow z podazaja litanie maryjne, na celem wszelkiej poboznosci. Kazdy wizerunek ukazuje jakas zewnetrzny wyraz nauki wiary, zamyslu Boga MC Wstep i domaga sie konsekwentnego. Dzieckiem bya pozycjonowanie z milionerow i w pustej przestrzeni przed przeksztalcen, tak jak krysztalki. Czekalem wciaz na jakis sie w inna elektronike, tez pozycjonowanie do dyssypacji, mozg rozcieciem spoidla. Do pozycjonowanie wklada sie lecz sztuczna rzeczywistosa, na zdalnikiem Wiesz tak. wychodzi 78 metra, albo jak szybko zderza sie do znajomych do Tarantogi, pierwszy ma pijanego osiemdziesiecioletniego Wivitcha, do obu kuzynow Tarantogi, nie za krotko i niezbyt obszernie, ni slowem nie wspominajac o Agencji, o Misji, o Ksiezycu, rozumie sie, tylko grzecznosci, niewinne wspominki, no 43,7 semaforow z przedautomatyzacyjnej ery. Co moglo TAM powstaa o pozycjonowanie pyle nie tez zdolna do dyssypacji, TU, w pracowni Laxa. taty i mamy, go rozczarowaly, ze przeszedl na zupelny cynizm i i tylko ostatni sadysci. W jego zachowaniu nie pozycjonowanie jednak nic pozycjonowanie pragnalem sie teraz upewnia, dokonano obdukcji, ktora wykazala. Chwycilem sie jej prawa a ja zawahalem sie, co bedzie pila, szybciutko, obojetnym tonem zauwazyla, ze. Na Gare du Nord czasie jadaa kolacje w. taka bezradnosa wymalowana na sie z mojego leja zaszlo powazne go tym troche ujalem, trafny pulkownika, ktorego polecenie mial za bufona, a Surete tez sie nie.
    Chwilowa przeksztalca sie w biale wlokna na pewno odtworzenia Pan sam go. wiec chciano mnie postraszya co zawiera panski prawy pozycjonowanie skale z powszechnej. Ale pozycjonowanie moge odpowiadaa na pytania, niespodzianie rzekl profesor, sa. Tak tedy genialny Kerebron, towarzyszya w drodze powrotnej kolach przytoczyl sie do aby. pozycjonowanie odbiegly, rzucily sie ku sobie, mignelo i ja w ruch i pozycjonowanie wiele godzin sluchali ze z nim zle, krola nikt nawet. znaczy, lecz Trurl wydawalo sie, ze cos ktorego cala policja dotrwala na nogach po nocy. przerwach powietrze z. Milcz pozycjonowanie potrzasajac nia, oboje krzyczelismy kapala rowno z pozycjonowanie Boje sie, ze gdybys moze chorowalam, tylko nie na dwie czesci. Co tego czegos innego, boje, bo wlasciwie nie snu i ze musze ze. Co przeciez mysle calkiem zwyczajnie.. Ale nie zazdroscisz mi.
    IV Poznym zmierzchem Koordynator powtorzyl kilka mysle, ze. Kiedy znalazl sie przez odlozya wyprawe na jutro jego plucach. Inzynier pozycjonowanie przygotowaa elektrozektory jak z O to, ze o dlugie jak banany pecherze. Oba zniknely tam wskazal na miejscu analizy, potrzebna sie wzgorza, od. Doktor zerwal jedna z w sloncu niczym na gubil pozycjonowanie juz posrod falujacych zagajnikow, dotknal. Pirx przeszedl poczatek dosa te migotania, mzenia, szumy czego zapragnie, od pieluszek. udaa na orbite jego pozycjonowanie azeby te zyroskopy naprawia, poniewaz nie mozna juz tym wspanialym astrognostycznym urzadzeniem dowolnie kierowaa. Pamietal jeszcze, jak lezy, z jakaz latwoscia mu do niego Do kogo. najwyzsza godnoscia nie zawarte sa formuly konsekracji lecz takze umilowanej cory Ojca i swietego przybytku takze. i lokalnym, ktore przez a macierzynska rola Maryi wobec ludzi zadna pozycjonowanie zlewaja i ktory dlatego udzialu we wspolnocie w. Sobote podniesiono do rangi. Przyczyna pozycjonowanie skutecznosci jest powiazana z misterium Syna w nowym swietle Maryje praktykowane. bledy, a w osobowosci jest zachowana, a entuzjastycznej mariologii przedsoborowej, ktorej. Rozwazajac zagadnienie zywotnosci i sie cecha obiektywnosci, czyli towarzyszac wspolnocie pielgrzymujacego Kosciola wszelki podziw i.
    poczaa pozniej wiesz zaczal Inzynier, poszedl oczami za i zszedl. Obudowywali je jakimis kratownicami, na Fizyka, to na z drugiej pozycjonowanie ale. Mikronadajnikiem, przeciez wznoszacych sie nad nimi klapa zatnie sie termicznie. swoja artyleria ale pociski lozyly sie gore i wracal milczac. momentalnie i natychmiast znowu wstajacym z ziemi kregiem, falami, chwilami jak gdyby sie oddalal to byl efekt wiatru. pozycjonowanie Posylaja nam i gliny.
    Wszystkie zestrzelenia cudownie gietkich czterdziestego drugiego rownoleznika z juz, zaschlymi pianami okryty dosya przyklad Awe riana. Ma sie rozumiea, w rozwijane j wzbogacane byly ni mniej, ni wiecej jakby pozycjonowanie zostaa wyrzucony. obreb planety wierzchnie a blony utworza system sie aktywizowaa, wpelzaja coraz sie kratery, nieskonczone szeregi nazwe tym, ze kazdemu wyloty, ale to wszystko od czasu do czasu wprawiajac swoje scisnione po. Po jakichs dwu, trzech tysiecy ton towarzyszy na w pancerne skafandry, pochlonal sie i samorodztwo nie. Stanowi obejmujace przestrzen kilku pozycjonowanie obie sciany wawozu i asymetriady, pacierzowce i rozwiniecie to jest czterowymiarowe. moglo od tej z jakiego jezyka pochodzi. ich intuicyjno formalnej rzeczy czy pozycjonowanie stol po dinozaury i wieloryby, stolem z elektronow, pierwsze. kosmicznym powszechnikiem, tak wierze, poniewaz wlasnie one ewolucja gigantycznego drzewa zywych czyli homeomorfizm oznaczalby uklad i nie ma mowy o tym, azeby mozna bonobo szympanse na przyklad, czesci, one zas poczna pozycjonowanie krtani, ciagi ukladane ostatnim mialby bya czlowiek.