[Coco] Republishing Magazines

[Dennis Bathory-Kitsz]

At 03:10 PM 12/27/03 -0500, Gene Heskett wrote:
>I don't find the heirs argument all that convincing myself.  Now if 
>the owner has wisely invested the proceeds so that the heirs have 
>something to inherit, that is good.  But to have the heirs profit 
>directly from something that they personally had nothing to do with 
>the creation of, no.  They didn't create it.

I only disagree because it is defined as property; I don't necessarily
agree with the process presently in play to deal with intellectual
property. That definition as property leads to all sorts of abuses
*against* the creators (regarding work-for-hire pressures, etc.), but even
so, property (for now) it is.

Let's talk about property. In those terms, would you say that a person who
built a business could not leave it to his or her children? Or that
stockholders could not leave their stocks to children? Or transfer them? In
present-day terms, these are all examples of property, and a business may
not even have much in tangible assets but merely a valuable name. Should
companies, stock, and other items also revert to the public domain after a
few years? Property rights advocates would have none of that, even though
companies are built through their interaction with the wider public, just
as 'creative works' are. There is little tangible about stocks, songs,
businesses, or dollars -- so why separate out copyrightable work for unique
treatment? It remains property.

Once property identification has been carved out for items which are
intangible, the limits on them as property can begin to fall away,
including limitations on transfer and ownership. We're seeing that in
progress now, right down to companies being able to patent your DNA or the
healing content of natural plants.

As I implied, I don't necessarily agree with the definition of property for
songs or businesses or stocks, for example. But until there is a viable
replacement, I think we have to give intellectual property at least the
same level of care, protection, and respect as a stock certificate!

>I think we would have to leave t to the courts to define that as any 
>law we could write is going to eventually wind up being re-written by 
>the courts.  OTOH, the courts, usually being less than technically 
>astute, have been known to screw it up in favor of a lifetime income 
>for the legal profession.

It is what it is. :) But the courts have by and large been conservative in
their judgments (I don't mean politically), relying on precedent and rarely
making what is considered new law. In fact, the whole issue of intellectual
property theft derives from a pre-Negroponte world view, and neither the
legislators nor the courts can yet cope with the changes. And corporations
are exploiting it for as long as they can.

[me]
>> no one has claimed that the ROT-13 version is
>> more than or different from a mere translation, and thus covered by
>> copyright.
>
>As it should be since it contains all the info for a full, verbatum 
>recovery.

You're looking from a 2003 view. From a 1980 view, when my article was
written, it was still human readability that determined the ability to
copyright something. In fact, John Hersey (author of 'Hiroshima') was on
the CONTU group and wrote in an brilliant dissent that such code was a
machine part, and hence subject only to patent (if to any protection at
all). He was steadfast in this opinion when I interviewed him. In the
present day, ROT-13 looks like a simple translation. But a translation can
be read in one of the human languages. ROT-13 cannot; it is a
transformation, but not a translation. As it stands, it is gibberish. One
might copyright the gibberish (in 1980), but not claim a copyright
infringement (then).

We're still dealing with the ramifications of this. Back then, I suggested
that providing a rotated code (not yet copyright protected) and a key to
reverse the process was safe. Today, we're looking at the transformation of
data and the implications of that transformation all the time, particularly
with respect to sampling and remixing...

>As in the digitization of the aural reproduction?  I'd hold that any 
>sample long enough to be a recognizable piece of a copyrighted work 
>also becomes something that carries the same authors copyright and 
>cannot be freely published or reproduced without the authors consent.

...and trying to answer the questions you raise. How long is long enough?
John Oswald demonstrated in his Plunderphonics pieces (lost in a suit by
Sony and the CDs destroyed -- though I have one) that samples as short as
100mS (and some shorter) were distinct enough to recognize. Can I copyright
100mS of sound? Some of the remarkable turntable artists (watch the DVD
"Scratch" and be amazed) are live sampling by using LPs (and now CDs and
MP3 players in special turntable ergonomic formatting), but cannot publish
those creations because the samples are not cleared.

There is a logic to both sides. Titles cannot be copyrighted (some get
trademarked, just as the Empire State Building and Chrysler Building and
Flatiron Building and Hollywood sign are trademarked designs), but sound
samples hundreds of times shorter are claimed for copyright. Some of it
certainly makes sense for protection, but what kind? For example, a drummer
who has spent a lifetime perfecting a certain kind of sound can be
identified in a single stroke. So that sample is protected -- but should it
be through copyright protection? Or some as yet undeveloped kind of
look-and-feel protection that Apple could never quite get mandated? Maybe
it is time for look-and-feel protection under a new 'concept copyright'?
But we don't protect ideas, and for good reason: ideas themselves are, as
they say, a dime a dozen. It is only manifested ideas that are protected by
patent and copyright.

>Looked at from that angle, yes.  But if an even greater work can be 
>wrapped around a recognizable phrase, and that time period has 
>elapsed, then I get a lot more ambiguous.

Sure, if the time has elapsed. But keep in mind that the Bachs and
Beethovens were working with near-contemporary work in their variations. Of
what interest is it to compose work based on music that has fallen out of
copyright after over a century? I'd love to do a set of variations on a
Zappa piece, but who can deal with the paperwork and expenses? A composer
colleague had to pay 5% of the profits on his entire CD for quoting the 4
notes of the Bernard Herrmann theme for The Twilight Zone. That's nothing
compared with another composer friend who just set some text by Auden, only
to find out that 50% of the gross from every performance must go to the
Auden estate. At this point from Auden's death, it seems reasonable to have
seen the rights expire -- but they haven't, and a living, breathing
composer must hand over 50% of her gross profits (which is almost all of
the net profit, meaning she gets nothing) to the heirs to Auden.

I'm not saying there's an easy answer. We'd like one, of course, but who is
to speak for the authors of Color Computer articles who are no longer
reachable or, like some of the important ones, now dead? If we want, in
good faith, to make compilations in a new medium, to whom must we go for
permission? Lonnie refuses permission, someone has said? On the other hand,
did not these authors retain their copyrights, and the new medium of
digital transmission is now open for use? Do we know? Why is there no
'abandonment' clause in copyright? Why have some companies claimed the GPL
to be illegal (or extra-legal)?

As I said, my TRS-80/CoCo articles and books have been made available. I
hope other authors have done that, and read their contracts enough to know
they can do so -- even if the final drawings or photos or typeset (if done
by the print magazines) cannot be used as-is.

>But it makes no exceptions for the useage if it in fact becomes 
>ubitiquous because its obviously the sensible way to do it, look at 
>the xerox patent on displaying a moving cursor with nothing more than 
>the xor of the screen data at that location with the cursor image.  
>Adnmittedly thats a patent, not a copyright IIRC, but its use, and 
>the resultant patent violation is so endemic it hasn't been 
>prosecuted in many years, and probably even expired by now although I 
>don't personally know one way or the other.

It's probably expired. But ubiquitous use does not guarantee freedom from
rights, as users of GIF discovered, and as users of one-click sales
discovered, and as users of the intermittent windshield wiper switch
discovered, and so on. Each of these was or is being pursued in courts,
under the more finely detailed patent laws.

But copyright is not much different from patents w.r.t. the ubiquitousness
claim. Neither allows protection of concept or structure, only exact
content. How granular can the content be made? Who knows -- the courts
haven't decided yet. If I quote a few words without credit, who will know?
But if those words are very distinct, unique to a poem, then I am liable --
despite it becoming ubiquitous. Ubiquitousness, as file traders and Happy
Birthday singers have discovered, does not indemnify their behavior.

>But I would argue that the actual sale of the copyright to a new owner 
>then leaves the exploitation of that copyright open to ways that 
>would cause the author to turn over in his grave if he knew about 
>them.

Absolutely true. But so would handing it to the public domain -- and
perhaps even worse abuses, like use in commercials against which the artist
might have railed or products the artist might have despised. The list is
enormous; capitalism corrupts, but don't get me on that topic! :)

>IMO, the author of that copyright should, at any time, have the 
>ultimate say-so in how it is exploited.

That is not quite the case. Copyrights and patents are economic in nature,
and though the author/creator may make it impossible economically, the
person with enough cash can pay the freight. However, in other countries,
creator-protection can be written in, especially for one-of-a-kind
artworks. Artists can retain a certain provenance, creating a covenant of
use no matter who the buyer is. Other countries are way ahead of the U.S.
in this kind of evolution.

>That right should not be for 
>sale, ever.  OTOH, if the holder is a psycho/flake, then I'd have no 
>reason to disagree with a court appointed power of attorney over it.  
>This to protect the user from a psycho.  That would have to be on a 
>case by case basis though.

Making work for lawyers, eh? On the other hand, I'm not fan of statist
solutions such as Neil's idea that the state license material. I think
protections and solutions can be better formulated, but administration
should never be in the hands of the state. That goes for the tape tax and
the Internet streaming tax as well, which are presently administered and
collected by the Federal government and turned over to a private agency. Grim.

>And you're right about ASCAP, they seem pretty fair and honest.  I've 
>seen dealings with BMI and SESAC both turn sour very quickly for us 
>as users of music.  We once (at a station I was at way back in the 
>mists of time now) bought a music bed library of about 25 lps, little 
>2 to 30 second stuff, with perpetual use rights in the purchase 
>contract.  We had to dump it in the trash (about $7500 IIRC) because 
>BMI would not recognize those rights.  They sued, we sued, and it 
>eventually faded away into history without being adjudicated in 
>eithers favor.  Its far enough back up the log now for the statute of 
>limitations to have expired I suppose.

There must be something else to it. Do you mean a radio station? Or a TV
station? If it goes from radio to TV, a different set of licensing is in
force. I have to deal with this for my own music.

All for now,
Dennis