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Re: Hypothetical situation to chew on

Josh Triplett <josh.trip@verizon.net> wrote:
> Andrew Suffield wrote:
> > Frankly, I think we were better off in the days when copyright had to
> > be explicitly claimed.
> >
> > Anybody who doesn't know enough to claim it obviously doesn't know
> > enough to license the damn thing properly either. That would cut out a
> > lot of the crap we see.
> I agree entirely.  I also agree with the various proposals to revoke the
> copyright grant when the copyright holder ceases to care about it.

Presumably this would result in a formula for copyright maintenance
similar to that now in place for trademark maintenance.  Personally, I
would not like to see this happen.

In an era when "grab bags" of content can be published on the cheap,
automatic copyright helps protect the authors of works of modest size
and commercial value.  In an "enforce it or lose it" regime, one could
not easily offer individual poems, essays, or other minor artworks for
publication in periodicals and anthologies while retaining the
exclusive right to publish one's own collected works later.

The classical forms of intellectual property -- copyright, patent,
trademark, and trade secrets -- were developed to protect very
different kinds of "intangible assets".  Arguably, none of them is
really the right answer for software, especially open source software.
 Copyright lasts too long and is too inflexible in the area of "joint
authorship"; patent gives too strong a monopoly and isn't applicable
to the bulk of software value creation unless the bar for originality
is set absurdly low; trademark protects the distribution channel but
not the creation; and trade secret protection only applies to things
that aren't shown to outsiders (hardly appropriate for free software).

In the US, the DMCA and UCITA amount to attempts to create a new form
of intellectual property specific to software and digital media.  I
happen to think they are very poor public policy in their details. 
But I'd prefer a well-thought-out "digital rights" legal formula over
distortions to the existing mechanisms.  The way it is now -- stealth
amendments bought by software and media giants, regulatory capture at
the USPTO, DRM arms races, and widespread contempt for the law -- is
no good.

In the best of all possible worlds, the same kind of work that went
into the DFSG (a most admirable set of quality criteria for free
software licenses) would be invested in a "square deal" standard for
commercial licenses.  (My idea of a "square deal" would disallow
anti-reverse-engineering clauses, acknowledge "doctrine of first sale"
rights to transfer or sell one's copy privately, and set a reasonable
standard for authorizing and tracking concurrent use.)  Perhaps such a
standard could give one-sided "model legislation" like UCITA a run for
its money.

- Michael

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