Re: linking and copyright

On Fri, Mar 24, 2000, T. R. Halvorson <pastel[_at_]btigate.com> wrote:
>
> When I went to sites in Australia and The Netherlands to read and
> save copies of the whole Handbook for the sake of ascertaining and
> documenting facts as steps in preparing an article on the case, I
> had knowledge that the copies I would be reading and saving would
> be directly infringing copies.

hi t.r. and tyler:

so apparently you don't have a copy of the real handbook, but only a copy of the digital work, which may or may not be the real one, which may or may not be the "unpublished" one? if we haven't seen the "real" work, how can we say that the "copy" is infringing?

i don't want to beat a dead cat, or kill a dead horse, but:

1. just curious: t.r.: did you think that your copying of this book was covered by "fair use"? if the Handbook was unpublished, or only "limited" published, what fair use is allowed? does not IRI's claim that the Handbook was unpublished stand as an effort to restrict anyone from publishing or copying any sections of it, no matter why? if not, why the insistence on the claim that it is "unpublished"?
2. "fair use" generally includes such things as copying or quoting sections for criticism, such as your article. why should not the Tanners be allowed under "fair use" to quote sections (well, perhaps not as extensively as they did, but that could be decided without a TRO) for the purposes of criticizing the LDS practices of (they say) not allowing members to permanently leave the church, when the church set these (unpublished) rules that say the opposite of their practice? it seems that the effort of the church here is to restrict the ability of the ULM to criticize them by quoting the recognized truth to them. and the idea that the work is unpublished is their ticket. now, if there is a strong possibility that the ULM might be able to argue fair use and free speech rights, should the court be so eager to issue a TRO and injunctive relief instead of making the parties argue the whole case in court? and isn't the court's reluctance to add The New York Times and The Salt Lake Tribune to the infringers (they made links to the sites before the contributor to the ULM BBS quoted them as doing so) mainly because that would be an outrageous affront to their free speech rights -- but does a web site have any?
3. i think you totally misunderstand my writings about the confusion of trade secrets and copyright protection. of course the laws are different, and the venues for enforcing them should also be different. but that does not prevent many people from confusing them, deliberately. for example, the church of scientology uses this claim of copyrighted unpublished material to hold onto a permanent monopoly of ideas and prevent any criticism of them by those who wish to read and quote the cos's ideas. the recent CyberPatrol TRO featured claims by Microsystems that their copyright needed to be enforced because otherwise the company would suffer irrepairable economic damage -- by those who find out the program blocks many sites it should not, and is essentially ineffective -- and that any publication of their unpublished but copyrighted material would never be fair use but instead revealing their trade secrets in violation of the accompanying license. the DeCSS cases feature just the same arguments -- that the publication of unpublished copyrighted material would be in violation of licenses and infringing on copyright under the DMCA in the U.S., and copyright infringement anywhere. and the ULM claims essentially that the LDS church needs to conceal its own rules from its members because if potential members found out that the LDS was inflating membership rolls then they would be less likely to join and contribute.

all these are claims of economic harm by publication of unpublished material under copyright, claims against parties who wish to quote parts of the unpublished material in order to criticize the actions of the copyright holders. so essentially what they are doing is using copyright law to enforce trade secrets and prevent any fair use of the material. i'm not saying that the courts won't uphold their efforts -- the DMCA certainly encourages them.

(i can add that mattel attorney schwartz was quoted as saying that the CyberPatrol alleged copyright infringement was like revealing Coca-Coca's secret recipe. interesting. i didn't know that recipes could be copyrighted, i wasn't aware that publishing what would likely be coke's recipe would be a violation of trade secrets, and i can read on a coke can a long list of ingredients -- but i am not allowed to read the list of sites that CyberPatrol blocks. maybe boston is becoming like atlanta?)

again, i say that if the courts cannot separate trade secrets from copyright, then the congress ought to. the congress should act only under the constitution, which allows copyright only to encourage the progress of science and the useful arts, not to allow another way for economic enterprises to protect trade secrets and prevent competition or criticism in the public arena. i claim that the Framers specifically intended to set up copyright in order to provide a path for authors and inventors to publish freely, so they did not have to rely on the states to protect their trade secrets. as we move to all-digital publication, these questions become very important -- if copyright as we know it fades, and fair use prohibited, then we will have an entirely different system of law (and some might say, time for another revolution).

4. i think this question was raised earlier, but i haven't seen an answer -- if the Handbook was printed in editions earlier than 1998, and probably "lent" to a great number of bishops around the world, and registered and deposited only in 1998, then when does the copyright term begin? if it began in 1998, is the work still unpublished, and can it be re-registered and re-copyrighted later, when it is "really" published? if it didn't begin in 1998, and the work is never "published" according to law, why isn't the term perpetual, in spite of what the constitution states? and if the term is practically speaking perpetual, then should the courts be in the business of enforcing perpetual copyrights (note that if the work was unpublished and never registered, then a different claim might have had to be made when seeking a TRO and request for injunction)?

-- 
"Eric"  Eric Eldred  Eldritch Press
mailto:Eldred[_at_]EldritchPress.org
http://www.eldritchpress.org/EricEldred.vcf