Introduction

The free culture community has existed so far on a basis of extending congressional law through the ad hoc "law" of licenses.

In this approach is an implicit or explicit assumption that it is in fact a workable solution. That is, the assumption is that it is possible to make up for the shortcomings of copyright law through clever licensing.

After considerable experience with PlanetMath and research for "The Fog of Copyleft", we now know this is not true. This page exists as a point of documentation for serious flaws and shortcomings in copyright law, most of which threaten to undermine free culture, irrespective of licensing.

The problems

Missing Notions

These notions are absent in any formal manner from copyright law, to ill effect. It is not necessarily the fault of the authors of the law that some of them are absent; the passage of time and drastic changes in technology and society have simply changed the circumstances. Still, this is no excuse not to enshrine the notions in law as needed.

1. User's Rights. There is absolutely no notion of "user's rights" in copyright law, because copyright only dealt with the dichotomy of author and publisher. Publishers were the only users. This is a serious problem because the typical free culture user these days does not at all resemble the kind of entity that a publisher is. A publisher has lots of money, people paid to handle the legal end of things, the ability to advertise, the ability to print on a wide scale, people that can be paid to perform all kinds of due diligence, and necessarily a profit motive. Instead, we are stuck with the rather foggy concept of "fair use", which is also deficient in that "use" is defined to be a class of relatively passive, consumerist "slave" uses (e.g. if "The Simpsons" happens to be showing on a background television for a few seconds in an independent film you produce, your film is not covered by fair use).
2. A notion of CBPP projects. Copyright law deals with the definition and ownership of copy rights and how they can be shared through licensing. It does not really deal with the authoring process: there is a "before publication" and "after publication" transition, but either side of the transition is generally untreated. Yet, CBPP projects are emergent from a central, meta-entity, composed of a shifting population of authors and particular (sometimes evolving) workflow practices and norms. Since this meta-entity is built on distinct people, it deals with interactions between people and transformations of content, which allows traditional copyright law to come into play, but because the meta-entity operates in a way distinct from the copyright law "black box authorship, publication" scenario, there is fog and friction produced when trying to apply content-based copyright rules to the situation.
3. Continuous Relicensing and Massively-Shared Copyright. In CBPP scenarios, there is continuous "relicensing" as a work becomes more derived by more people, and this produces massively-shared copyright. The continuous relicensing is the other half of the above problem: it is what happens after the "point of publication" when re-use occurs; a situation which was not a high priority in extant copyright law. The failure to clearly treat these phenomenon render previously lucid copyright law rather foggy (especially relative to the "bugs" below).

Serious "Bugs"

1. Copyright/License take-back. This clause, which states that the author of a work has a 5-year window 35 years after publication (or any license or copyright agreement) to "take that work back", irrespective of the stipulations of any of these agreements. There is a cottage industry of laywers who will help authors take back full ownership and rights to works they have already signed away, to perhaps find some new angle to squeeze more royalties out of them. This all seems very sensible as an "escape hatch" for content creators, in the face of a powerful, aggressive, and abusive publishing industry. But the provision is turned on its head when copyright users become regular people, as in free culture. In this situation, you have the possibility that an original author may suddenly decide they'd like royalties out of a work they had already released in some free culture capacity (perhaps after it turns out popular), in which case it is clear they can take back agreements they've made with first-order users of the work (however, see the below second item in "vagaries" for how it is unclear if second and further-order users are exposed). Even worse, because estates/next of kin automatically take over copyright, one is exposed to the possibility that people with completely different value systems may acquire rights to a free culture work, then decide to make it un-free.
2. Attribution take-back. The law says that derived-works authors have to remove attribution if an earlier author does not want it on derived works (this clause is echoed in the Creative Commons licenses). This does not seem at all to be a critical clause, and its existence provides a snake-in-the-grass of potential work for writers and maintainers of free culture content.

Major Vagaries

1. Public Domain. The law refers exclusively to how works can fail to be copyrighted and slip into the public domain, but does not really give reasonable instructions on how to intentionally put it there (except the silly requirement of filing it at the copyright office—a requirement no other class of content has anymore). Further, since the law was recently changed to make the default state of any work copyright, all rights reserved, it is unclear what the status of public domains with no mark is, as by virtue of being public domain, users can remove any license or attribution marks (the issue is not that users can re-copyright the works if they want to, which they can by definition, but that they might accidentally do so by virtue of forgetting to inclue a public domain mark).
2. Does the Law Refer to The Original Work or Derived Works? Not having thought much of modes of usage based heavily on derivation (see above), the law is often unclear whether provisions (such as take-back) apply to only first-stage license agreements or to second and further-stage agreements as a derived work further evolves.
3. Legal Protection of Ideas It is a fundamental principle that one cannot claim legal expression for a mere idea or plan — one needs to have done some creative work to express that idea and then one can only claim legal protection (copyright, patent, or trademark) for one's particular expression of that idea (as a work of literature or an invention or a logo or whatever) but that the idea is free for all to use. Nowadays, this principle has been severly undermined. For instance, a restaurant successfully sued a rival for also enclosing it's bakery in glass walls, having a checkered tile floor and neon wall displays. Software firms have claimed that programs with a similar "look and feel" were infringing. Digital libraries have restricted users' access via licenses on the pretext of a thin copyright interest in their collection and presentation of works, even thought the works themselves were in the public domain (but, thankfully, the courts are not (yet, hopefully never) buying this — consider this cases of Feist vs. Rural Telphone and Corell vs. Bridgman). Were Stallman launching his GNU project in today's circumstances, the main threat might not so much be Symbolics co-opting code as Bell suing GNU for infringing their thin copyright interest in the arrangement and names of the modules and the "look and feel" of the Unix operating system. (In fact, SCO is trying to sue GNU for this today.)

Possible Solutions

Reviving Mandatory Notice

Actually, copyright law used to contain a very important user rights measure which, unfortunately, was undone when the change from mandatory registration to automatic copyrighting took place. Before 1978, it was required that, in to retain copyright on a work, one needed to include a copyright notice with the work. If one did not include this notice or if the notice was inaccurate, one forfeited copyright interest and the work passed into the public domain.

This served an important function in protecting users rights. By looking at the notice, one could determine the copyright status of a work and locate the copyright owner(s) at a glance. In the case where only part of a work was copyrighted (say, if a book involved a significant amountof material taken from government works, which cannot be copyrighted) the notice needed to state this as well. More than once it happened that a publisher unwittingly infringed on a copyright on account of an inaccurate copyright notice and successfully defended himself in court by pointing out inaccuracy in the notice. As testimony to the lasting value of this now defunct law, consider the fact that Project Gutenberg maintains a file of copyright notices as proof that the books it distributes are indeed in the public domain.

I suggest that it is time to bring back the mandatory copyright notice. To be sure, the original form of the notification requirement would be unworkable today becasue it was closely tied to regisration and hence the two were repealed together. Also, while in circumstances where a publisher has sole distribution rights, it makes sense that the consequence of misnotification would be forfeiture of copyright, this no longer makes sense in a setting like the internet where many different sources are distributing the same work.

To adapt to these circumstances, consider the following modified version of mandatory notification. In order to distribute a work commercially, one must attach a copyright notice. Failure to provide a notice or providing an incorrect or misleading notice or tampering with the notice would be illegal (say, fraud or perjury). In this way, copyright notices would be very much like "Do not remove under penalty of law" labels on matteresses. Should a user in good faith infringe a copyright based on eroneous information on a copyright notice, the distributor (or whoever tampered with the notice) would be liable for the consequences of such an infringement.

This proposal would restore users' rights to copyright law. It would put the emphasis in the right place. Nowadays, in order to guarantee users' rights via licensing, an author needs to assume a fictitous interest in the work so as to force distributors to attach a suitable notice. As we outlined elsewhere, this can be very confusing — why is an author whose intent is to make a work freely distributable and usable reserving all rights? Under this proposal, however, it would be the prosecutor, representing the interests of the public, who would sue deviant publishers who claim copyright interest in a work in the public domain. Since it is the public, not the author, whose rights are being violated in this case, this would be a more appropriate solution. --rspuzio (Aaron, if you agree with this proposal, please change the "I" to "we" and add your name.)

I do indeed agree! I have felt that way ever since I started learning about intellectual property whackiness. We have thrown away a lot of law that was right in the first place (ok, not "we", but those who can afford to buy their own congressmen…) --akrowne Sat Feb 4 09:42:10 UTC 2006