Last week brought the story of a group of crypto enthusiasts who paid well over the going rate for a rare sci-fi book, then proposed encoding scans of all its pages in a blockchain before making and selling NFTs of them. To guarantee their rarity the book was then to be burned. Aside from the questionable imagery surrounding book burning in general, one of the sources of mirth in the story was their mistaken idea that in buying a copy of a rare book they had also acquired its copyright rather than simply paying too much for a book.
It’s an excuse for a good laugh, but it’s also an opportunity to talk about copyright as it affects our community. I’m not a lawyer and I’m not here to give legal advice. Instead this is based on the working knowledge gathered over decades working in the content publishing industries.
Copyright is a subject that continually does the rounds in our community, as we talk about open-source licenses, about DRM, freedom of availability for scientific papers, or over-litigious content owners. While often seen in open-source circles as working against our interests, copyright itself is a powerful tool that provides the bedrock upon which the very notion of open-source is built.
When somebody creates something, it is their physical property. Write something on a piece of paper, print it in a book, and you can sell the book. Intellectual property extends this idea of ownership beyond the physical — as well as owning the piece of paper you wrote on you also own the specific artistic manifestation of its text.
You can print as many copies of it as you like and sell them under your own terms, and most importantly you can mount a legal challenge to anyone trying to print their own copies. This is the realm or copyright that probably causes most consternation, as depending on your viewpoint it’s the most valuable aspect of copyright, as well as the most abused.
As a content creator, you automatically own the copyright on your work. That’s a powerful thing to own, but equally powerful is the ability to transfer that ownership. For example, the words flowing from my keyboard to make this piece are mine, but I’m transferring their ownership to Hackaday in return for the almighty dollar so this story’s copyright is owned by them. But it’s in that right that we find the very basis of open-source, because as well as simply assigning ownership to somebody else you can also selectively assign rights to third parties. The various open-source licenses are simply documents that provide a convenient pre-written form with which to do this.
We’re guessing that the choice of an open-source licence comes for many developers in terms of familiarity, if a favourite project uses a particular licence then they’ll pick it for their own. It’s worth considering carefully and taking the time to understand what the licence has in its small print though, because sometimes unintended consequences can flow from an unwise choice.
In 2007 for example a Texan teenager was aghast to find her image in a Virgin Mobile Australia advert, which had been used by the telco because the photographer had put it on Flickr under a Creative Commons licence without fully understanding its implications. When choosing a licence it’s important to consider your desired outcomes and ask yourself whether you wish to allow commercial use for example, or whether you require all derivative works to use the same licence.
For the former you might wish to choose a permissive licence such as those from Apache or MIT, while for the latter you might consider the GNU GPL. A couple of decades ago when the GPL was under attack it was derided by its opponents as “viral” because once something has been released under it then it can not easily be moved to a different licence without the consent of all its contributors. It should bring a smile to the face of any open-source advocate to find that an open-source licence can be used to undermine an essential tool of intellectual property holders.
…As Well As Your Enemy
Having established your rights over things that you create, let’s look at where most of the controversy over copyright comes from: in other people or more commonly companies asserting their rights – whether real, tenuous, or imagined, over things they own. Where does that come from, where is it dubious, and how can you avoid any difficult situations?
In the first instance, when there is a clear copyright violation it is not unreasonable for an intellectual property owner to assert that ownership with some form of challenge. The challenge can be as simple as a takedown notice or it could be a multi-million-dollar lawsuit, but it amounts to the same thing: “You are using our stuff without permission, stop it.” This is not even something that is the sole preserve of large companies, as an example it’s not uncommon for photographers to have their work stolen by newspapers and respond by submitting punitive bills.
Long-time Linux users will remember the battles between SCO and some commercial Linux vendors for example, a series of legal challenges that were eventually dismissed as unfounded but which cast a chill over the whole early-2000s Linux ecosystem.
Navigating The Maze Without Sinking
If copyright is so tied down, how can we navigate a path through the world without constantly being sued by anyone who feels they deserve a piece of our pie because they imagine something sounds a bit like their obscure B-side from 1974? The answer lies in an idea called fair use, and it’s this that anyone who creates content needs to be aware of. In essence, fair use can be summed up in the sentence “Here’s something you indisputably own, but I’m using it under a circumstance that either we both understand is acceptable or that legal precedent has established to be acceptable”. It’s a grey area that contains some safe harbours, but which anybody venturing into should take heed of the warning not to stretch it too far.
One particular safe harbour is referred to as the in-review safe harbour, where it’s agreed that reviews of books need to be able to extract quotes from them, reviews of movies can include stills or short clips, and Hackaday can use images you’ve taken of your projects when we write them up.
Another safe harbour lies in parody. I’m not about to write a sit-com featuring a restaurant called Bendy’s, but were I to do so I should be pretty safe. Think of almost any popular culture parody from Weird Al to Bored of the Rings, and you’ll find this in action to a greater or lesser extent.
Copyright is a probably-necessary evil that can work on your side, whether you want your work to be protected as your property or put out into the public domain, but it is also a minefield in which powerful content owners can flex their muscles sometimes unfairly. If you’re writing software or creating content, it probably pays for you to take a little bit of time to better familiarize yourself with the landscape.
Header: derived from work by TreasuryTag (CC BY-SA 3.0).
54 thoughts on “Copyright, What You Need To Know”
I cant hel thinking of the guys NFTnizing the movie of the book birning in flames, lol!!
Nevertheless, thanks for the article!
I cannot wait until the first NFT copyright lawsuits start flying. Unfortunately, crooks often move on by the time the law gets there.
this article really needed to cover the aspects of copyright for schematics and “build instructions”, something that is commonly misunderstood by engineers, developers and hobbyists…
“Easy”. The particular schematic and the particular word choice in the instructions are copywritable, but redrawing the circuit or re-describing the algorithm is permitted because the underlying circuit and recipe aren’t.
(IANAL. Just that I’ve read up on this sort of thing.)
The not so easy thing is that scammers consider their scam scheme a business model.
With scammers I do mean those who do not add value to the work, but do add costs to the work.
Copyright is good, when it prevents others from taking your work and selling it as their own.
Copyright is bad, when it is used to create artificial shortages or is used for extortion of persons who wish to use it as an example or to illustrate a point.
In the late 70s, I read an anthology of science fiction that had been published in the late 50s. Ten years later, I was writing a paper for a course, and I wanted to use the one of the stories as an example to support my argument. I made the effort to go back to that small town library, find the book, note all of the pertinent information. I wrote to the publisher to get permission, expecting it to be freely given considering my purpose. They wanted US$52 for each copy I printed. I needed 3 copies = 2 weeks rent or one month groceries. My paper was produced with a summary of the story and appropriate citation.
When I read the book, the book was long out of print. I wanted to reproduce 9 trade size pages out of a 350 page anthology that sold for US$8, according to a tag on the book’s dust jacket. If the item had still been in print, I could have purchased multiple copies of the book less expensively (the going rate for a similar hardcover was <US$20 at the time, & mass paperback about $5.)
My position is that a publisher ought not to be allowed to demand huge sums simply because they let a work go out of print. Their profit should come from proper publication and distribution, not extortion. Once an item is out of print, any person or organization ought to be able to pick it up and reprint it simply by paying the original creator (or their heirs) whatever royalty was originally agreed.
An even bigger problem is works whose ownership is unclear because the original entity that owned them is out of business or has forgotten or simply does not care to support the work. Works should revert to their creators or to the public domain after a reasonable period of disuse. The current standard, public domain whether it’s in use or not for however long it takes for Mickey Mouse to remain under copyright, has become totally ridiculous.
I’ve seen other people refer to this as a right to distribute: copyright means as long as the copyright owner is making an effort to distribute the work, the copyright is maintained, but if the piece goes out of print the copyright is then in the public domain.
This was more compelling in the book era, as it is trivial to maintain digital distribution indefinitely. (But that’s kinda a good thing.)
“f the piece goes out of print the copyright is then in the public domain.”
Really? Can anyone cite law to that effect? If it is true, that would be great!
This isn’t law. [smellsofbikes] is suggesting it’d be a nice law.
Sounds more an argument for copyright term limits than any kind of “shortage” (which could happen at any time aka “back in the vault”). Yell at Sonny Bono and Disney for that debacle.
Not a change in term limits. I, as a creator, should be able to control or limit distribution. If I make an exclusive arrangement with a publisher to publish and distribute my work, then there needs to be an obligation on the part of the publisher to continue to make my work readily available, if only on a “print on demand” basis, and the price point should not discourage consumers from obtaining a copy of my work, limited only by any restriction I may have set (a limited edition of x copies). A publisher who stops making an item readily available (before my limit) loses all rights to the work, and I can make other arrangements for publication/distribution. My earlier suggestion of paying an author whatever royalty was arranged was intended as default in the absence of any other specification.
>I, as a creator, should be able to control or limit distribution
I don’t understand this point. People complain about artificial scarcity, but then demand the ability to maintain artificial scarcity. The argument for copyright is simply hypocritical.
Authors create and that’s really where the value of their work is. Distributors distribute and that’s where their value is. Copyrights grant authors a monopoly over distribution, which is just weird.
If you’re the creator, it’s common to put a term in with your contract with the publisher stating that if it goes out of print for more than 2 years then the contract ends and you’re free to get it republished elsewhere.
Publishers may not offer that in the standard terms they suggest, but it’s common to get it inserted.
I’m down with this. Copyright could expire in 17 years like patents, and I’d be happy.
At some point, art has to belong to the society that values it, IMO.
US utility patents on applications filed on or after June 6, 1995 expire 20 years from filing (subject to payment of maintenance fees). With a handful of exceptions due to procedural tricks, 17 year patents have gone the way of the dodo. Most other countries had 20 years terms before the US.
At some point, art has to belong to the society that values it
Oh sure. But not while the creator is still alive.
They and they alone should have control over how their work is distributed, used, etc. Unless they’ve assigned that right to someone else.
Let’s test these concepts of ownership:
“I’m down with this. Copyright could expire in 17 years like patents, and I’d be happy.”
So, once you’ve owned a home/car/bicycle/whatever for N period of time, should your ownership expire and the next person who comes along can just take it? Say after 17 years, for instance? Or is it that the objects fall into the public domain and anyone can take your/the public’s car anytime they want?
“Oh sure. But not while the creator is still alive.”
So, you own a home/car/bicycle/whatever and then you die. Do your neighbors – or total strangers – get to take those things rather than you being able to will the ownership rights to your children or grandchildren or your favorite charity? Or, again, do your former possessions become the property of the public domain, so anyone can do whatever they like with them?
Is it somehow specifically different if the object is a work of art or music or literature? Why do others gain free use of your hard work?
(And if anyone here is construction oriented, I’d like to make public domain use of your skills to build me a garage. Without compensation, of course, because you’ve had enough benefit from your abilities and the arbitrary time limit for you to claim exclusive ownership of your abilities has elapsed.)
>once you’ve owned a home…
Copyrights don’t apply to physical property, but to ideas and information. Your comparison is invalid.
“Copyrights don’t apply to physical property, but to ideas and information. Your comparison is invalid.”
Yes. My point was to ask, through comparison, WHY we change the concept and nature of ownership for ideas and information.
And why, in those specific categories, do we suddenly think we should get to take away the works of others for free and without their consent?
If the home/car/bicycle/whatever example seems ludicrous, why is it less ludicrous when applied to a book/movie/invention, etc.?
Why do we need – or expect – a double standard?
> They and they alone should have control over how their work is distributed, used, etc. Unless they’ve assigned that right to someone else.
The whole “creator is still alive” is a perversion and just lets add 70 years after authors death as a cheery on top. I know of no other law that allows someone to continually mooch of something they did once for the rest of their lives (and death).
And the key thing here that made it like that was “assigned that right to someone else” together with Disney’s custom tailored extensions to copyright. It incentives a behavior that promotes litigation before creation.
>WHY we change the concept and nature of ownership for ideas and information.
Bring me the hole of a doughnut – not the doughnut itself, just the hole – and I will show you.
>why, in those specific categories, do we suddenly think we should get to take away the works of others
Because we’re not. You can’t take away the author’s work because it’s immaterial. It would be like stealing someone’s footsteps – where’s yours? Can I put them in my pocket? Once a piece of creative work is done, it is like this.
There is nothing to take. What actually happens, we are violating the author’s monopoly to distribute repeated copies of information and contesting their ownership to that information. That monopoly is not based on any property that anyone could own, instead it is entirely based on legal fiction that says something which isn’t a thing IS a thing, for the purpose of granting special privileges and rights which do not automatically follow from the act of authorship.
I’d like to see something done to keep things in print. But traditionally, if others had bootlegs, it might not be profitable for the original publisher. Digital may change that, but digital seems to be the thrust of much anti-copyright campaigning.
But, I don’t want things tampered with. A nazi version of Anne Frank’s diary? My great, great, great grandfather wrote 3 books, some of it was racist. But there are some really neat passages that record things in the Northwest circa 1811. The two belong together.
If you can actually create something valuable, you don’t need to ride on another’s coattails. Create your own spy, that’s easier than coming up with as good a story as Ian Fleming.
A copyright is less restrictive than some of the anti-copyright types suggest. And too many try to dismiss the effort required to create, but want to be able to use that work.
Authors have moral rights as persons, such as not being falsely represented, not having their works censored, etc. but these don’t necessarily have to have anything to do with copyright.
Oooh!!! Word salad! Yum!!!!
Wow! English as a SECOND language. Duh?
“GPL was under attack it was derided by its opponents as “viral” because once something has been released under it then it can not easily be moved to a different licence without the consent of all its contributors.”
That’s a gross misrepresentation of the virality argument. GPL is viral because it forces your own code to be GPL licensed even when your project just includes unmodified GPL licensed source files or statically links GPL libraries. I.e. using GPL “infects” your project as soon as you integrate GPL licensed components.
Yes, I too think the “viral” part of GPL were completely missed in the article.
Though, GPL does have an exception to its infective nature if the GPL licensed code is used in a fashion that can be deemed as a plugin to the larger application, and vice versa. (And this is mainly so that GPL projects still can use closed sourced code, but it works both ways. Though it doesn’t regard everything as a plugin, so this isn’t a silver bullet.)
The problem a lot of copyleft licensed works though have is license incompatibility. Both when included in non copyleft licensed projects, but also when mixed with others of their own kind.
It would be nice if copyleft licenses had a simple “used as is” clause, that would allow anyone to just import that project into any other project and just us it as the tool that it were meant to be. However make any amendments/improvements to the imported project, or port it to a new platform, then share that work. (Compile time improvements is a debatable topic, but dynamically linked code post compile should avoid that debate.)
Though, it wouldn’t be unfair if the other project were required to credit every such tool that it uses, and include that credit in its license for an example. (In short, if one’s project uses SDL2, then just write: “uses SDL2 as can be found on libsdl.org” somewhere in the license for one’s project.)
But there is likely already a ton of major programs resting on some project a random developer in Nebraska has thanklessly maintained since 2003. So maybe making it easier for people to just use a project as a tool in a larger project isn’t that beneficial in all cases. Though, larger companies and organizations should honestly look over their projects and maybe chip in a bit to everyone who’s shoulders they are technically standing on.
I should probably end by saying that this is all just my two cents, no one has to agree with it.
However that’s exactly the “gross misrepresentation” dishonest companies and individuals use as an excuse to misappropriate other peoples work.
“Integrate”, but not like calling an API. Shades of the Oracle/Google case.
Sure, it’s the ‘permanent’ inclusion of the GPL source or part of it, or a binary derived from that source, i.e. compiled in and/or statically linked, which make the project a “Derivative Work”.
If you use it as a ‘standalone’ component and load it separately, then the project is not a “Derivative Work”.
The English have a saying about the loudest complaints coming from the worst offenders.
In my experience, the loudest complaints usually come from three main sources:
The one’s who didn’t read the license and got bit on the ass by it.
The one’s who didn’t understand the license and refuse to ask for help because ‘ThEy KnOw EvErYtHiNg’.
But mostly it’s the one’s who got caught with their hand in the cookie jar.
Thanks for the basic introduction.
A deeper text about copyright should include two concepts that are even less well understood (even by law professionals) and even less defined, which are personality or portrait rights and database rights.
Personality rights protect the personality of people. In a photo it falls on the people portraited in that photo, not the potographer. Its meaning varies wildly by jurisdiction. In e.g. France it is almost forbidden to spread recognizable photos of people (even if not the main subject) without their permission. But in the Netherlands it’s only applies to people’s “marketable” portrait value, e.g. you can’t sell a portrait of a famous model without their permission, but a random passerby is ok. Off course defamation is usually not allowed (sometimes via copyright law, sometimes via others), unless it’s newsworthy (don’t publish a random passerby drunk with pants down in the streets, but it’s ok to do with a politician)
Database rights apply to the collection of usually non-copyrightable data, such as phone numbers, train time delays or store opening times. Also, rules vary wildly per jurisdiction and by case, but in general you need to be more careful if the creation and maintenance of the database is the core business of the creator, and if they put more of an effort into it. So for e.g. you can copy store opening times from the stores website (their core business is selling food) but not from Google Maps (their core business is -among others – collecting businesses’ data).
A special use case of copyright is to prevent the spreading of a creative work altogether, instead of protecting monetary interests. E.g. Hitler’s Mein Kampf’s (No Godwin intended) copyright was owned by the state of Bavaria (until expiry at end 2015), which prevented spread of the book, and the Netherlands has put the design of emergency vehicles under copyright, so you can’t paint your car like a police car without violating copyright.
Want some articles on the EU unitary software patent?
I could submit something if you ask.
A few other commonly misunderstood points:
1. You cannot copy an idea, only the expression of an idea. You cannot copyright a story plot, only an actual story. There are legal standards for just how much one story has to resemble another enough to be infringing, but those standards are pretty strict. It’s not enough to write a story about a similar course of events, you have to show that the characters and specific events within the plot are similar enough that it defies coincidence.
2. If someone sends you a letter, you do not own the content. You do own the letter as a physical artifact but you don’t own the right to publish it. (In fact, this seems to be the basic misunderstanding of the NFT idiots.) Since copyright is implicit at the point of creation of a work, this is the default condition unless the author specifically gives you permission to publish what they wrote.
3. It is not necessary to register your work or display any kind of standard copyright message for it to be copyrighted. Copyright is implicit in the act of creation. However, registration makes it easier to prove infringement and confers additional legal rights. For example you cannot sue for punitive damages against an infringer even if you can prove the infringement unless a work is registered. There also some other legal functions which require registration; I registered my self-published novel over 20 years after writing it so that I could sell an option for the film rights.
4. Registration isn’t expensive or hard. If you contact the Library of Congress they will be very helpful letting you know what you must provide, and the fee is not onerous.
Huh? How is pointing out that using GPL licensed code has implications on the license of your own code an excuse of misappropriating other peoples work? IMO it’s the exact opposite: the “virality” argument points out that GPL licensed code can’t be used unless you’re willing to license your own work under similar terms. Don’t like the license, don’t use the code.
Should have been a reply to Jonathan. brr..
GPL licensed code can’t be used unless you’re willing to license your own work under similar terms.
That simply isn’t true.
Your code only inherits the GPL if it ‘permanently’ includes GPL source, i.e. compiled in, or statically links a binary derived from GPL source.
If you use it as an external component, e.g. load it from a separate file, then your code does not inherit the GPL.
There are litterally hundreds of Windows applications which do this.
“There are litterally hundreds of Windows applications which do this.”
I suppose this makes sense. IIRC the GPL is partly concerned with the freedoms of the end user. So if the GPL work is compiled without modifications and then loaded by a proprietary application then the user still has the freedom to fix bugs in the GPL code, recompile and have the proprietary application load their fixed code. Not a freedom that they have with the proprietary components.
A lot of places do follow the “don’t like the license, don’t use the code.” standard.
But the viral nature of GPL and other copyleft licenses is one of the main downsides of using such licenses.
This is one reason more general standards are using more permissive licenses. Like the zlib license for the zlib library typically used for image compression. HTTP also uses a permissive license (apache), as well as most other major standards.
If one wants more or less everyone to use a piece of software, then GPL and most copyleft licenses is out of the question, since those licenses makes it impossible for a lot of people to use it due to their viral nature.
But even GNU (the organization behind GPL) states that one should likely look for another license for smaller works, especially if they are supposed to be used by absolutely everyone.
It simply isn’t an all that good license for most software libraries.
Though, there is always some “idiots” that takes more permissively licensed projects and makes a fork of it and hide it in the land of closed sourced code saying that they have made it “better” and requiring license fees to use it, even if it is the same exact code. This is the case for zlib and even SDL. And yes, this “idiotic” behavior isn’t right, one should respect these projects for what they are, and help them if one can and is willing, not see it as a quick cash cow waiting to be milked.
But copyright is generally all about stopping people from just reeking in profit from other people’s work that they themselves haven’t contributed to. Not everyone is willing to respect that part.
The craziest thing about the whole Dune thing was that although their understanding of copyright was just totally wrong, the idea that they could make NFTs of the pages and sell them was still legal. They couldn’t make and sell scans of the pages, but because the sale of the NFT conveys no rights and reproduces no part of the work it would not actually fall foul of copyright law. This wouldn’t actually benefit them – because the value of an NFT hinges on its “legitimacy” they would have been effectively worthless. But an NFT is effectively a receipt for ownership of a catalog entry so good luck trying to prosecute them if they tried it.
Yes, a lot of people miss critical details.
Though, personally I don’t see any value in an NFT.
Since they are more or less just saying, “This person is validated to have sent money to this other person for whatever is on the other side of this random link (that might lead to no where now) that this NFT itself can’t validate that the seller even has the rights to the content in the first place.”
Then there is all the people who believe that NFTs are the “only way to sell digital content”, as if regular contracts and copyright law didn’t already cover these sorts of works.
Right clicking a picture on the internet and saving it is not that different from bringing a camera to an arts museum. It doesn’t give the person saving a personal copy the right to distribute it, nor to modify it as part of one of their own works unless covered by fair use. (I am however no legal expert and isn’t going to give legal advice, but NFTs don’t bring anything new to table.)
In general, what does one want to spread? If it’s an idea like a particular encryption standard, or a video codec one would choose a license that allows everyone to benefit, open and proprietary. If one wants a wide propagation of code than a more restrictive license may be called for.
I think GPL and other copyleft licenses makes more sense for larger projects. Like Linux, Gimp, Blender, etc.
For an API or library, a more permissive license is usually better for everyone involved.
Though, when it comes to APIs and Libraries I do understand why some people look for GPL/copyleft instead when random companies just forks the project and tries to take over the thing one has made by spreading a proprietary version with associated license fees. (This market practice is simply immoral, respect the original creators’ work.)
I’d be interested in a generic article about NFTs. I understand the blockchain, distributed ledger, and such, regarding cryptocurrency, but I don’t understand how translating that to physical objects works.
It was explained to me this way: just as digital moved away from the limits of physical and allowed “many”, NFTs with a chain of custody brought restrictions and limits back to “one”, basically allowing scarcity in a world of infinity. This is good if you want something like a serial number or proof of ownership.
Maybe that can give you a glimmer of insight, too :-) Fingers crossed!
It is just a ledger entry that is signed by the relevant parties that asserts itself to be the One and True entry for such-and-such. There is nothing else about translating to a physical object. The NFT is merely the ledger entry.
It is like paying for a work of art, and then paying again for the label that has 1/1 or such written on it and is signed. Instead of, or in addition to, writing 1/1 on the back of the work.
Except that often the work itself is 1/unlimited and the 1/1 is just for the label; a promise not to sell any other similar Official labels describing the asset!
Was the semicolon already under copyright restriction such that you had to resort to abusing the poor comma? *sigh*
ID.me’s Terms of Service conveniently grants them all rights and permissions for all correspondence.
That includes content they use to verify your identity.
Always read the contracts.
So… they are burning books eh?
I am planning to sell betaMax copies of the postal service performing for the post office to fund my movie about a new department in the post future post office and if anyone steals my idea I will sue the whole universe. All safe harbors have folks looking for me so this is my only option.
At this digital age copyright should be, like, 5 years max. Maybe allow one time 5 year extension for a price.
Alternatively, copyright should be abolished altogether. It outlived its usefulness to the public as in practice soon nothing will enter public domain. Copyright was a two-way deal. If the public is not getting its part, might as well break the deal.
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