The Failure of Tradition

SCLAOctober 23rd 2014

How CopyrightIs Forced To

Change in the Digital Age

Rogan Hamby

The Mythology of Copyright

Myth #1 Copyright

is Natural Law

Myth #1 Copyright

is Natural Law

Natural LawNoun

1. a body of unchanging moral principles regarded as a basis for all human conduct.

4th Century BC

1500s

• Aldus Manutius AKA this dude ->• Created dolphin and anchor as a

trademark.• 1503 appealed to the Venetian Senate for

protection of printed works. His manifesto said that piracy was out of control and would destroy his business and investments. They ignored him.

• Agricultural manual in 1514 printed with a 15 year copyright granted by Pope Leo X

England

The Printing Monopoly

Licensing of the Press Act of 1662

Gave the printing guild a monopoly. Parliament didn’t renew it and then the printing guild failed to get traction in renewing it. So, they changed tactics by suggesting that authors could get some rights in a new law too.

The First Copyright

Statute of Anne 1710

14 years + 1 renewal

Watershed event. Didn’t apply to the colonies but set a cultural expectation.

By 1783 authors petitioned the Continental Congress for some kind of protection but it had no authority. Instead encouraged it’s member states to enact protection similar to the Statute of Anne.

At the Constitutional Convention in 1787 James Madison and Charles Pinckney submitted proposals to give Continental Congress power to grant limited copyrights and those became the basis of what is in our constitution.

Article I, Section 8, Clause 8 “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

Copyright Act of 1790 applied to to maps, charts and books for 14 years and renewable once if statutory formalities were followed, such as registering it and printing notice. And every few decades it changed again.

1831 Copyright Act1834 Wheaton vs. Peters1841 Folsom vs. Marsh1853 Stowe vs. Thomas1870 Revision of Act1886 Berne Convention1891 Copyright Treaty1909 Act Revision… Quiet but not inactive1976 Act Revision1988 Berne Convention1992 Amendment to 3041998 Sonny Bono Act1998 DMCA… and plenty more

Myth #2 Intellectual

Property is Property

So, we’re 19 slides in.

Let’s start failing.

Failure #1

Tools have been made that make making stuff so easy … even a monkey can do it.

Let’s Explore

This Idea a Bit

Further

let’s express ourselves

• To be copyrightable it needs to be an expression of an idea (ideas are not copyrightable nor are facts)

• From the copyright act of 1976:“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”

Failure #2

Tools Have Become Pervasive

Failure #3

Data Can Be Copyrighted (sort of)

Facts Are Not Copyrightable

University Alpha#1

University Beta#2

University Gamma #3

University Delta#4

University Epsilon#5

University Zeta#6

University Alpha #1 = Average earnings $90,000 a year

University Beta #2 = Average earnings $85,000 a year

University Gamma #3 = Average earnings $70,000 a year

University Delta #4 = Average earnings $65,000 a year

University Epsilon #5 = Average earnings $50,000 a year

University Zeta #6 = Average earnings $1 a year

CDN Inc. v. Kapes, 197 F.3d 1256 (9th Cir. 1999)

Health Grades, Inc. v. Robert Wood Johnson University Hospital, Inc., 06-CV-02351-JLK (D. Colo. June

19, 2009)

My Pointless Algorithm

Step 1) Remove from data set earners who fit in categories in appendix 1. Step 2) Take earnings and average them, then multiple by a weighting of 2.5. Step 3) Take age of program and provide a value to add to first value based on where in the banding of appendix 2 the value falls, give a +2 bonus to all programs with a doctorate programs. Step 4) Remove 1 point for each lawsuit in the last 5 years.Step 5) Add one point for every $100,000 in tuition assistance programs. Step 6) Add one point for every sports championship in the last five years. …Step 998) Randomly add a value between 1.22 and 27.999 for the heck of it. Step 999) Order from highest to lowest as rankings.

Failure #4

function copywrite(code) is error

sub ol_runtime_init {

# fetch the requestor object($requestor, $evt) = $U->checkses($authtoken);ol_handle_result($evt) if $evt;

# try the param, the workstation, and finally the user's ws orgif(!$org) {

$wsobj = ol_fetch_workstation($wsname);$org = $wsobj->owning_lib if $wsobj;$org = $requestor->ws_ou unless $org;ol_handle_result(OpenILS::Event->new('OFFLINE_NO_ORG'))

unless $org;}

$user_groups = $U->simplereq( 'open-ils.actor', 'open-ils.actor.groups.retrieve');}

VS

Is An API Copyrightable Code?

getFile { user, password,json }

End Sub

Failure #5

Copying Is Too Easy

Pay What You Want

• Music• Books• Films • Software• Restaurants• Theaters

Sell the Experience

• Tickets

• Merchandise

• Limited Editions

• Premium Access

Attract a Patron

• Kickstarter

• Indiegogo

• Patreon

Sell Convenience

Failure #6

National Borders Are Meaningless

The Future Is Treaties Not Laws