[Coco] Republishing Magazines

[Gene Heskett]

On Sunday 28 December 2003 09:18, Dennis Bathory-Kitsz wrote:
>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.
>

Looked at from that viewpoint Dennis, I can't continue the argument 
very strongly.

>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).

I'd contend that with enough training, a rot-13 text could be read as 
easily as the plaintext.

>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.

Can we not define that this test would be with a generally experienced 
ear, as opposed to one thats been trained in such nuances all its 
life?  But again, that reduces to an ambiguous result, and the law 
hates ambiguity.

>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)?

Too many questions, all of which have no current answers according to 
current law.  As far as Lonnie is concerned, if you wanted to be 
published in the Rainbow, you signed a contract that gave Lonnie all 
rights in perpetuity.  Or were some people exempt from that?  Like 
you, Barden, and Dibble?

>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.

Which is why an algorythm should not be patentable, there are so many 
variations in the srcs that will compile down to the exact same code 
once the optimizers get thru with it.

> 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.

I'd like to see that imported.

>>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.

Yup.  With plenty of case history to back up that judgement.

>>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.

TV station, and no, not that I could see.  I read the purchase 
contract after the fact when the first letter of notice came in from 
bmi, and it looked pretty bulletproof to me, with all the i's dotted 
and all the t's crossed.  But the vendor who sold it to us was not to 
be found by the time this disagreement with bmi came up about a year 
later.  So as a market 205 station (out of then 206 total), we were 
effectively the only deer in the headlights of bmi.  Heck, if it 
wasn't for emergency checks from Jim Baker and his PTL Club, we 
wouldn't have made payroll near as often.  Now, if Jim had paid like 
the air contract said he would, we could have made payroll easily.  
He owed them a 6 figure amount yet when the law pulled the plug on 
him.

I have since warned other management about to sign up for a deal thats 
too good to be true, that it probably isn't.  In this case, the music 
wasn't all that good either, not much we could make a jingle out of, 
and nothing that we could use that put a "trademark" on our news that 
folks could remember a month down the log.

>All for now,
>Dennis

I think for the most part that you have won this argument.

Happy New Year Dennis!

-- 
Cheers, Gene
AMD K6-III at 500mhz 320M
Athlon1600XP at 1400mhz  512M
99.22% setiathome rank, not too shabby for a WV hillbilly
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by Gene Heskett are:
Copyright 2003 by Maurice Eugene Heskett, all rights reserved.