Category Archives: free culture

JD Lasica has a nice catch. Apparently, the Boston Globe has copyrighted the Declaration of Independence. But see 17 USC �506(c). Continue reading →

The FCC has released its opinions in re the media concentration decision of June 2. Continue reading →

Phil Greenspun has a funny (as in sad) story about the market rising because the public domain is being transferred to corporations. The hook is (of course) the Sonny Bono Act (Free Culture!), but then Phil tells this bizarre story about how Disney World has apparently succeeded in getting the airspace above Disney World assigned to it. As Phil writes,

>Ever since the dawn of aviation it has been held that airspace belongs to the
>public and is to be regulated for the benefit of all by the FAA.� This is what, for
>example, prevents the owner of a farm in Missouri from demanding that Delta
>Airlines pay him a tax every time they fly over his farm.�

But there is a relevant pre-history here that is useful to remember. Before “the dawn of aviation,” in fact, the law was that the owner of a bit of land owned not just the land, but all the land to center of the earth, and, as Blackstone put it, “to an indefinite extent, upwards.” (See pg 18 here).

This, of course, created a problem once the history of aviation was born. For obviously, if I own all the space above my land, then companies like United are just napsterizing my property as they fly above my land.

The Supreme Court finally resolved this matter in 1946. The Causby’s, North Carolina farmers, complained because military aircraft were causing their chickens to fly in panic to their death as they smashed into the walls. The Causby’s claimed “trespass” and demanded the military stop flying over their land.

The Supreme Court rejected the argument that airplanes trespass. As Justice Douglas wrote for the Court,

>[The] doctrine has no place in the modern world. The air is a public highway,
>as Congress has declared. Were that not true, every transcontinental flight
>would subject the operator to countless trespass suits. Common sense revolts
>at the idea. To recognize such private claims to the airspace would clog these
>highways, seriously interfere with their control and development in the public
>interest, and transfer into private ownership that to which only the public has
> a just claim.

“Common sense revolts at the idea.”

Where’s a good “common sense revolt[]” when you need it? Continue reading →

As reported in Michael Geist’s great Internet Law News service:

>CANADA TO SCRAP COPYRIGHT EXTENSIONS ON UNPUBLISHED WORKS
>Decima’s Canadian New Media reports that the Canadian
>government plans to drop controversial provisions from a
>bill that would have extended the term of copyright for
>unpublished works by deceased authors. Dubbed the Lucy Maud
>Montgomery Copyright Term Extension Act, members of a
>committee considering the bill noted that they had been
>flooded with calls and emails of people concerned with the
>copyright extension.

Help us flood more members with calls and emails! Continue reading →

The Creative Commons blog has a great story about Jeff Bezos recommending Cory’s first novel (and there’s more coming!) Down and Out in the Magic Kingdom. Cory’s book is available either for purchase or for download — for free, under a Creative Commons license. Continue reading →

This is a nicely detailed review of the Aimster argument by a Chicago attorney. Continue reading →

Jed Horovitz has produced an extraordinary film about the “culture wars” which may well not be around for long. You can get Willful Infringement on DVD. Many people should. When the lawyers find this, we’ll need archives stored in many places. (Note: the web page says I’m in the film, but only for a few seconds. The really great characters are two clowns.) Continue reading →

I know I said Dastar was decided correctly. I believe it was. But there is a line in the opinion that really gets me — for it is the only place in the opinion where the Court cites Eldred, and it cites it for a proposition that must be wrong.

Justice Scalia writes, “To hold otherwise would be akin to finding that �43(a) created a species of perpetual patent and copyright, which Congress may not do. See Eldred v. Ashcroft.” But this line show why it would have paid for the Court to pay more attention to the originalism in Eldred. For this line betrays a confusion about what “copyright law” was — at least — originally. And under an originalist reading of the copyright power, there would be no Copyright Clause problem with Congress requiring attribution for public domain works.

The confusion is the failure to distinguish “copyrights” from “authors rights.” As Ray Patterson argued over 30 years ago in “Copyright in Historical Perspective,” the framers understood “copy-rights” to be distinct from “auhors rights.” Authors rights protect the right to attribution, and to some degree, the right of integrity. These rights are related to the “moral rights” the Europeans speak of. They are fundamentally distinct from the “copy-right” — which was a right to control the publication of a work.

From an originalist perspective, then, it is true that Congress shouldn’t be able to grant a “copyright” — a right to control the publication of a work — for a perpetual time. But the right to attribution is not, from that perspective, a “copy-right.” And thus if there were another power of Congress that could support that right — the Commerce Power, for example — then a requirement of attribution should not run afoul of the copyright power. Continue reading →

Kevin Kelly writes with the following amazing story:

> Thought you’d enjoy this. I was researching some stuff today and read
> this amazing story in THE INVENTION OF PRINTING IN CHINA, by Thomas
> Carter (1955):
>
> Carter is describing the very first printed book in the world, the
> DIAMOND SUTRA, a intact copy of which was found in a secret cave
> chamber in Kansu China. The book was published on May 11, 868.
> That’s, what, some 1100 years ago. Here is the key: the very first
> book ever printed had a public domain notice. Here’s what Carter says
> [p. 56]:
>
> The book consists of six sheets of text and one shorter sheet with
> woodcut, all neatly pasted together so as to form one continuous roll
> sixteen feet long… At the end, printed into the text, is the
> statement that the book was “reverently made for universal free
> distribution by Wang Chieh on behalf of his two parents on the 15th
> of the 4th moon of the 9th year of Hsien-t’ung.”
>
> Designated Universal Free Distribution from day one.
>
> Wang Chieh would have signed the petition. Continue reading →

We have launched a petition to build support for the Public Domain Enhancement Act. That act would require American copyright holders to pay $1 fifty years after a work was published. If they pay the $1, the copyright continues. If they don’t, the work passes into the public domain. Historical estimates would suggest 98% of works would pass into the pubilc domain after 50 years. The Act would do a great deal to reclaim a public domain.

This proposal has received a great deal of support. It is now facing some important lobbyists’ opposition. We need a public way to begin to demonstrate who the lobbyists don’t speak for. This is the first step.

If you are an ally in at least this cause, please sign the petition. Please blog it, please email it, please spam it, please buy billboards about it — please do whatever you can. And most importantly, please help us explain its importance. There is a chance to do something significant here. But it will take a clearer, simpler voice than mine. Continue reading →