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Published on 18 Jun 2018Eric Lundgren got 15 months in prison for selling pirated Microsoft software that the tech giant gives away for free. His case cuts to the heart of a major battle going on in the tech industry today: Companies are trying to preserve aspects of U.S. copyright law that give them enormous power over the products we own.
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June 20, 2018
Do You Have a Right To Repair Your Phone? The Fight Between Big Tech and Consumers
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June 9, 2018
The (formerly) friendly Bobby – “The police have been alienating their erstwhile natural friends for some time”
Patrick West on the long decline in public trust for British police:
Metropolitan Police at G20 protests in London, 2009-04-01
Photo via Wikimedia Commons
In Britain, there have traditionally been two sections of society who dislike the police. One type are radicals – or pseudo-radicals, as epitomised by the capitalist-run store Lush and Rik from The Young Ones – who object to the forces of law’n’order on anarcho-libertarian grounds. The police for them are ‘pigs’. The other type are the working class, or sections of it, who object to the police on account of them poking their nose into private matters that don’t concern them. The police for them have historically been ‘the filth’.
Yet the police are now widely disliked beyond those two demographics. These days, even conservatives and the respectable middle class don’t like the rozzers. A story beyond the hoo-ha over Lush and its anti-police ads might help to explain why.
This year there has been a litany of reports about rape cases collapsing owing to police failing to investigate evidence that would have exonerated the defendants. And this week it was revealed that 47 rape and sexual-assault cases in England and Wales were halted between January and mid-February because evidence was withheld from defence lawyers.
This is not entirely the police’s fault. They have been under political pressure from lobby groups obsessed with attaining rape conviction quotas – as if justice was about achieving statistical targets, rather than punishing guilty individuals and letting innocent individuals go free. As the Daily Telegraph, a newspaper that should be a natural friend of the police, put it: ‘It is hard not to conclude that under pressure to increase conviction rates, the police and prosecutors simply withheld evidence that would help the defence, in order to make a successful prosecution more likely.’
The police have been alienating their erstwhile natural friends for some time. This first became evident at the end of the last century, with the jailing of the Norfolk farmer Tony Martin for shooting dead a burglar who had broken into his home. The consequent outrage in the conservative press stemmed from a belief that the police were now more concerned with the human rights of criminals than with crimes against private property, in this case.
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June 2, 2018
YouTube Won’t Host Our Homemade Gun Video. So We Posted It on PornHub Instead.
ReasonTV
Published on 31 May 2018Reason has a new video out today explaining how to put together a homemade handgun using some very simple tools and parts you can buy online. But you won’t find it on our YouTube channel.
_____After the March for Our Lives rally, YouTube announced that it would no longer allow users to post videos that contain “instructions on manufacturing a firearm.”
Our video and its accompanying article are part of a package of stories in Reason‘s “Burn After Reading” issue. It includes a bunch of how-to’s, including how to bake pot brownies, how to use bitcoin anonymously, how to pick the lock on handcuffs, and how to hire an escort.
The whole issue is a celebration of free speech and our way of documenting how utterly futile of all kinds of prohibitions can be.
We made a video showing how easy it is to DIY a Glock because we wanted to show how the First Amendment reinforces the Second Amendment. If a bunch of journalists can build a handgun in their kitchen, we can assume it’ll be pretty hard to keep guns out of the hands of motivated criminals.
If YouTube prevents us from uploading the video, have they violated our First Amendment rights?
“YouTube of old days was this amazing thing that has become the digital library of Alexandria on the Internet,” says Karl Kasarda, the co-host of InRangeTV, a weekly YouTube show about guns. The show used to survive on ad revenue, until YouTube started de-monetizing certain forms of content. Once YouTube made it impossible for Kasarda to make money on its platform, he started posting his content to other places, including PornHub.
Last October Prager University, a conservative video production shop, sued YouTube, saying it had restricted the audience for content and alleging that the company was “unlawfully censoring its educational videos and discriminating against its right to freedom of speech.”
But here’s the thing: YouTube is a private platform. There is nothing in the First Amendment (or the Second) that requires them to host our gun video. Reason can turn down articles for any cause that we choose. We can do it because we don’t like the color of the author’s hair, or because we don’t like the font she used in her pitch email. We wouldn’t be violating a single constitutional right by doing so.
We wish YouTube would run our video. It’s awesome. But equally awesome is YouTube’s right — our right — not to run content we don’t like.
Karl Kasarda is correct that YouTube is the closest thing we have to the Library of Alexandria. It still doesn’t mean they have to carry our video.
YouTube is hardly the first to test this principle. In 1972, a teachers union president who was running for state legislature sued The Miami Herald, insisting it run an editorial he had written after he was attacked in its pages. The Supreme Court correctly ruled that ordering a newspaper to print an editorial violates the First Amendment. After all, a newspaper is “more than a passive receptacle.”
Prager University argued that YouTube isn’t entitled to the same editorial discretion as The Miami Herald because it advertises itself as a “platform for free expression” that’s “committed to fostering a community where everyone’s voice can be heard.” A federal judge, thankfully, dismissed the Prager lawsuit, rejecting the company’s argument that YouTube is comparable to a “government entity” and thus must be open-access. A slew of other judges have arrived at the same conclusion.
YouTube deserves the same editorial latitude those judges gave to The Miami Herald in the 1970s and that Reason enjoys today.
And that’s one of the things our new gun video is celebrating. If YouTube doesn’t want to post it to their site, its loss. We’ll just post it to another platform. That’s what the free and open internet is all about. So if you want to see our video, you can watch it here at Reason.com — or head over to PornHub and see how to make your very own unregistered firearm.
Links:
https://reason.com/archives/2018/05/31/how-to-legally-make-your-own-o
https://www.pornhub.com/view_video.php?viewkey=ph5b0460dc60380Edited by Todd Krainin. Narrated by Katherine Mangu-Ward. Written by Jim Epstein and Katherine Mangu-Ward. Cameras by Meredith Bragg.
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The Robinson Affair (that the British establishment would like to “disappear”)
If you haven’t been paying attention to the British media, you might not have heard about Tommy Robinson and his crusade to expose the “Asian grooming gangs” that have been left almost undisturbed by the British police, prosecutors and (until very recently indeed) the media:
The controversy around him continued. In March, Robinson was suspended from Twitter, where he had almost half a million followers. The social-media site (which merrily allows terrorist groups like Lashkar e-Taiba to keep accounts) decided that Robinson should be suspended for tweeting out a statistic about Muslim rape gangs that itself originated from the Muslim-run Quilliam foundation. And it is on this matter that the latest episode in the Robinson drama started — and has now drawn worldwide attention.
Ten years ago, when the EDL was founded, the U.K. was even less willing than it is now to confront the issue of what are euphemistically described as “Asian grooming gangs” (euphemistic because no Chinese or Koreans are involved and what is happening is not grooming but mass rape). At the time, only a couple of such cases had been recognized. Ten years on, every month brings news of another town in which gangs of men (almost always of Pakistani origin) have been found to have raped young, often underage, white girls. The facts of this reality — which, it cannot be denied, sounds like something from the fantasies of the most lurid racist — have now been confirmed multiple times by judges during sentencing and also by the most mainstream investigative journalists in the country.
But the whole subject is so ugly and uncomfortable that very few people care to linger over it. Robinson is an exception. For him — as he said in a 2011 interview with the BBC’s Jeremy Paxman — the “grooming gangs” issue isn’t something that afflicts some far-off towns but people in the working-class communities that he knows. And while there are journalists (notably the Times’ Andrew Norfolk) who have spent considerable time and energy bringing this appalling phenomenon to light, most of British society has turned away in a combination of embarrassment, disgust, and uncertainty about how to even talk about this. Anyone who thinks Britain is much further along with dealing with the taboo of “grooming gangs” should remember that only last year the Labour MP for Rotherham, Sarah Champion, had to leave the shadow cabinet because she accurately identified the phenomenon.
Which brings me to last Friday. That was when Robinson was filming outside Leeds Crown Court, where the latest grooming-gang case was going on. I have to be slightly careful here, because although National Review is based in the U.S., I am not, and there are reporting restrictions on the ongoing case. Anyhow, Robinson was outside the court and appeared (from the full livestream) to be filming the accused and accosting them with questions on their way in. He also appeared to exercise some caution, trying to ensure he was not on court property.
But clearly he did not exercise enough caution, a strange fact given that last year Robinson had been found guilty of “contempt of court” for filming outside another rape-gang trial, one involving four Muslim men at Canterbury Crown Court. On that occasion Robinson was given a three-month prison sentence [PDF], which was suspended for a period of 18 months. Which meant he would be free so long as he did not repeat the offense.
Although Robinson appeared to be careful at Leeds Crown Court last Friday, to dance along the line of exactly what he could or could not livestream outside an ongoing trial with a suspended sentence hanging over his head was extraordinarily unwise. What happened next went around the world: The police turned up in a van and swiftly arrested Robinson for “breach of the peace.” Within hours Robinson had been put before one Judge Geoffrey Marson, who in under five minutes tried, convicted, and sentenced Robinson to 13 months. He was immediately taken to prison.
From that moment it was not just Robinson but the U.K. that entered a minefield of legal problems. In addition to the usual reporting restrictions on the ongoing trial, a reporting ban was put on any mention of Robinson’s arrest, swift trial, and conviction, meaning that for days people in the blogosphere and the international media got free rein to claim that Tommy Robinson had been arrested for no reason, that his arrest was a demonstration of a totalitarian state cracking down on free speech, and even (and this one is remarkably clueless as well as careless) that the recent appointment to the position of home secretary of Sajid Javid — who was born to Muslim parents — is the direct cause of Robinson’s recent arrest.
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May 29, 2018
“[T]here’s just no way that we’re going to get to fentanyl harm reduction without [legalization]”
Tim Worstall reports on a recent Nebraska drug bust involving enough fentanyl “to kill 26 million people” (that is, about 120 lbs of the stuff) and explains why the current enforcement regime is going to have to change:
Now, I’m in favour of all of these drugs being legalised anyway. It’s the idiot’s body, up to them what they ingest in whatever manner. If it kills them, well, their choice. The argument that they shouldn’t therefore we must prevent them doesn’t cut much ice with me.
But put that aside and think in a utilitarian manner. If we can prevent overdoses and wasted lives then we should. But only if how we’re going to do it is better than the results of either not doing so or even using some other manner of dealing with the problem.
It’s arguable that clamping down on certain illegal drugs does at least limit their penetration of the market. I don’t think this is true of heroin but perhaps it is potentially true. It’s absolutely not true of fentanyl. For that’s a synthetic opioid. A decent chemist can synthesise it – a good one can make the precursors as well. There is no need to get opium, morphine or any other poppy related product that we already control.
It’s also, as we can see, alarmingly cheap already. Easy to smuggle in vast quantities of doses.
There’s another problem with it. The difference between a dose that gives a high and one that kills is pretty narrow. And it’s an extremely potent drug as well. Quantities for either are small – smaller than can generally be measured by users with candles and teaspoons.
It’s cheap, easy enough to make, has no precursors we can control, kills easily enough and dosage is alarmingly difficult to get right. So, what do we do?
We’re not going to get rid of it for all of the above reasons. So, we need to do damage limitation. Stopping people from dying from it sounds like a pretty good idea actually. And that means that we need it to be pure and in known dosages. That is, we need it to be legal.
I think all drugs should be legal, hey, your body and all that. But even if you think that harm reduction is a more important goal there’s just no way that we’re going to get to fentanyl harm reduction without legality of it. For that’s the only way we will get it in known doses which don’t kill people. And we’re most assuredly going to keep getting it even if we don’t legalise it. Our choices are people tooting on illegal fentanyl and dying or people tooting on legal fentayl and not dying. Not such a toughie that question, is it?
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May 27, 2018
May 16, 2018
QotD: The presidency and the Supreme Court
… I also like Jerry Jeff Walker, the Scofflaw King of New Orleans and a lot of other people I don’t necessarily believe should be president of the United States. The immense concentration of power in that office is just too goddamn heavy for anybody with good sense to turn his back on. Or her back. Or its back…. At least not as long as whatever lives in the White House has the power to fill vacancies on the U.S. Supreme Court; because anybody with that kind of power can use it – like Nixon did – to pack-crowd the Court of Final Appeal in this country with the same kind of lame, vindictive yo-yos who recently voted to sustain the commonwealth of Virginia’s antisodomy statutes……. And anybody who thinks that 6-3 vote against “sodomy” is some kind of abstract legal gibberish that doesn’t really affect them had better hope they never get busted for anything the Bible or any local vice-squad cop calls an “unnatural sex act.” Because “unnatural” is defined by the laws of almost every state in the Union as anything but a quick and dutiful hump in the classic missionary position, for purposes of procreation only. Anything else is a felony crime, and people who commit felony crimes go to prison.
Hunter S. Thompson, “Fear and Loathing on the Campaign Trail ’76: Third-rate romance, low-rent rendezvous — hanging with Ted Kennedy, Jimmy Carter, and a bottle of Wild Turkey”, Rolling Stone, 1976-06-03.
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May 13, 2018
Title IX complaints as a form of Prisoner’s Dilemma
The more I read about Title IX, the more I wonder why university students dare risk mingling with the opposite sex under any circumstances outside class:
The University of Cincinnati suspended a female student for allegedly engaging in nonconsensual sex with a male student who claimed he was too drunk at the time to approve the encounter.
The fact that this case involves a male accuser (“John Doe”) and a female aggressor (“Jane Roe”) makes it unusual among Title IX complaints. (Title IX is the federal statute that forbids sex discrimination in schools.) But the female student’s lawsuit against Cincinnati — which accuses the university of violating her due process rights — reveals something even odder: Roe had previously filed a sexual misconduct complaint against one of Doe’s friends.
Roe’s lawsuit, then, suggests that Doe filed the complaint against Roe as a kind of revenge for getting his friend in trouble. (I have an alternative theory, but I’ll save that for the end.)
“On information and belief, John Doe was motivated to file a Title IX Complaint in retaliation for a prior Title X Complaint Jane Roe had filed against his friend,” according to the suit.
Roe also contends that it was ridiculous to find her guilty of nonconsensual sex because of Doe’s drunkenness, but not find Doe guilty too: Roe was also drunk at the time, so under the rules she was just as unable to consent to sex as he was. While this might seem like a paradox — how can two young people rape each other? — it would actually be a straightforward application of affirmative consent, which requires all participants in a sexual encounter to proactively obtain freely given and unambiguous consent before proceeding.
[…]
According to The Cincinnati Enquirer, Roe said that she was being punished for “engaging in the same sexual freedoms that men on the campus enjoy.” It might be more accurate to say she is being held to the same standard — a standard that is, for many reasons, horrible.
Roe’s theory that Doe’s complaint was a form of revenge is interesting, and it could be true. Perhaps the whole thing was a setup — he lured her to his bedroom, feigned drunkenness, and initiated sexual contact, fully intending to race to the Title IX office the next day, no-one-wounds-me-with-impunity style.
Here’s an alternative theory: Doe woke up, realized they had engaged in sexual activity while they were both drunk, and feared that she would file a complaint against him, as she had done to his friend. Panic-stricken, he felt he had no choice but to beat her to the punch.
Indeed, if you suspect you are going to become the subject of a Title IX investigation, the optimal strategy may very well be to file the first complaint. For reasons not completely clear to me, Title IX administrators often appear biased in favor of the initial complainant, and presume the other party is the wrongdoer.
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May 12, 2018
Cryptocurrency scammers
A high proportion of initial coin offerings are nothing but scammers doing what scammers do best, says Nouriel Roubini:
Initial coin offerings have become the most common way to finance cryptocurrency ventures, of which there are now nearly 1,600 and rising. In exchange for your dollars, pounds, euros, or other currency, an ICO issues digital “tokens,” or “coins,” that may or may not be used to purchase some specified good or service in the future.
Thus it is little wonder that, according to the ICO advisory firm Satis Group, 81% of ICOs are scams created by con artists, charlatans, and swindlers looking to take your money and run. It is also little wonder that only 8% of cryptocurrencies end up being traded on an exchange, meaning that 92% of them fail. It would appear that ICOs serve little purpose other than to skirt securities laws that exist to protect investors from being cheated.
If you invest in a conventional (non-crypto) business, you are afforded a variety of legal rights – to dividends if you are a shareholder, to interest if you are a lender, and to a share of the enterprise’s assets should it default or become insolvent. Such rights are enforceable because securities and their issuers must be registered with the state.
Moreover, in legitimate investment transactions, issuers are required to disclose accurate financial information, business plans, and potential risks. There are restrictions limiting the sale of certain kinds of high-risk securities to qualified investors only. And there are anti-money-laundering (AML) and know-your-customer (KYC) regulations to prevent tax evasion, concealment of ill-gotten gains, and other criminal activities such as the financing of terrorism.
In the Wild West of ICOs, most cryptocurrencies are issued in breach of these laws and regulations, under the pretense that they are not securities at all. Hence, most ICOs deny investors any legal rights whatsoever. They are generally accompanied by vaporous “white papers” instead of concrete business plans. Their issuers are often anonymous and untraceable. And they skirt all AML and KYC regulations, leaving the door open to any criminal investor.
Of course, for a significant number of people, not having the state involved in their investment is an attraction rather than a drawback. And not just criminals, but people who live in jurisdictions with uncertain reliance on the rule of law (not to mention Russia by name), where property rights are not so much “rights” as “privileges to the right sort of people”.
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May 9, 2018
Freedom of the Press … except where prohibited by (British) law
Wednesday is a critical day in the history of Britain, in the sense that a long-established freedom is at risk of being curtailed:
Press freedom is hanging by a thread in Britain. Tomorrow, the House of Commons will vote on the Data Protection Bill, and Labour MPs have added amendments to it that would effectively end 300 years of press freedom in this country.
That this profound affront to liberty had almost passed under the radar, until spiked and others began making noise about it over the weekend, shouldn’t surprise us. This vote is the culmination of a slow and covert war on the press that has been waged for the best part of a decade.
This story begins with the Leveson Inquiry, an effective showtrial of the press that sparked dozens of spurious trials of journalists and barely any convictions. Since then, press-regulation campaigners have had to find new and underhand ways to push their agenda on an industry and a public who clearly see right through it.
In the wake of Leveson, a new regulator, Impress, was established and given official recognition. It was an historic moment, in the worst possible sense: this was Britain’s first state-backed regulator since the days of Crown licensing. But it was also a stunningly bad bit of PR for the press-regulation lobby, in that Impress was staffed by tabloid-loathing hackademics and funded by tabloid-loathing millionaire Max Mosley.
No national newspaper signed up to it. And so the Hacked Off brigade has been pushing over the past few years for Section 40, a law that would force publications to sign up to a state-approved regulator, which at the moment means signing up to Impress. Those publications, like spiked, who would refuse on principle, would be required to pay the legal costs of any case brought against them, even if they win.
As such, Section 40 would be a gift to the powerful and the begrudged. It would enable anyone to launch lawsuits aimed at shutting down publications they dislike. This is an opportunity that people who have been exposed by the press would take in a heartbeat. It would undermine not only press freedom, but also natural justice.
And it isn’t just the press who are concerned about this. In 2016, the government opened a public consultation into press freedom, asking members of the public if it should implement Section 40 and commence the second part of the Leveson Inquiry. Out of a huge 174,730 responses, 79 per cent said No to Section 40 and 66 per cent said No to Leveson 2.
Update, 10 May: The vote was too damned close, but it was defeated by a nine-vote margin. Guido has the list of MPs voting in favour of muzzling the press here.
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April 17, 2018
QotD: Named Laws
A good rule of thumb in reviewing contemporary legislation is that if the bill in question is named after a child it is bound to be a bad one. It will be based on pure emotion, rather than reason and any principled opposition to the bill will be stifled at the risk of appearing callous or insensitive to the personal suffering of the bill’s proponents.
Jay Jardine, “A Dumb Law, By Any Other Name”, The Freeway to Serfdom, 2005-01-24.
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April 12, 2018
Canadian Music Policy Coalition pushes to revive the idea of an “iPod tax”
Michael Geist on one particular rent-seeking submission to the federal government pushing for changes to Canadian copyright law:
The long-awaited Canadian copyright review is set to kick off hearings next week as a House of Commons committee embarks on a year-long process that will hear from a wide range of stakeholders. My Globe and Mail op-ed notes that according to documents obtained under the Access to Information Act, however, one stakeholder – the Canadian Music Policy Coalition, an umbrella group representing 17 music associations – got an early start on the review process last fall by quietly submitting a 30-page reform proposal to government officials.
The proposal, titled “Sounding Like a Broken Record: Principled Copyright Recommendations from the Music Industry”, calls for radical changes that would spark significant new consumer fees and Internet regulation. The plan features new levies on smartphones and tablets, Internet service provider tracking of subscribers and content blocking, longer copyright terms, and even the industry’s ability to cancel commercial agreements with Internet companies if the benefits from the deal become “disproportionate.”
The coalition, which includes the Canadian Council of Music Industry Associations, the Canadian Music Publishers Association, and copyright collectives such as SOCAN, asks the government to follow three main principles as part of its reform process: real-world applicability, forward-thinking rights, and consistent rules.
But the coalition proposal largely avoids discussing the current state of the industry, perhaps with the intent of leaving some with the impression that file sharing remains a significant problem. The reality is the music industry in Canada, led by the massive growth of authorized music streaming services, has enjoyed a remarkable string of successes since the last time copyright law was overhauled in 2012.
The Canadian music market is growing much faster than the world average, with Canada jumping past Australia last year to become the sixth largest music market in the world. Music collective SOCAN, a coalition member, has seen Internet streaming revenues balloon from $3.4 million in 2013 to a record-setting $49.3 million in 2017.
Moreover, data confirms that music piracy has diminished dramatically in Canada. Music Canada reports that Canada is below global averages for “stream ripping”, the process of downloading streamed versions of songs from services such as YouTube. Last month Sandvine reported that file sharing technology BitTorrent is responsible for only 1.6 per cent of Canadian Internet traffic, down from as much as 15 per cent in 2014.
Yet despite the success of Internet streaming services and the marginalization of file sharing activity, the coalition has crafted a reform proposal that would be more at home in 2008 than in 2018. For example, the industry is now calling for new fees to be set by the Copyright Board on all smartphones and tablets to compensate for personal copying. The revival of the so-called “iPod tax” would today go far further than just digital music players, as the coalition is asking the government to amend the Copyright Act to allow for fees to be imposed on all devices.
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QotD: “Hate” speech
The whole idea of ‘hate speech’ needs to be removed from our legal system immediately. Aside from the numerous problems involved with deciding what is and what isn’t ‘hate speech’ (and who gets to define what it is), allowing the most timorous snowflakes to set the boundaries is a surefire recipe for tyranny. And besides all that, the expectation that you somehow have a right not to be offended is ludicrous. Being offended is good. Being offended is healthy. Being offended leads to self-examination. That’s how discourse progresses. Anything new is bound to offend at least one person. If nobody is offended, then nobody is thinking.
“OregonMuse”, “The Morning Rant”, Ace of Spades H.Q., 2018-03-21.
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April 11, 2018
Mumbai’s high court demonstrates lack of economic knowledge in theatre ruling
Movie theatres and multiplexes generally charge more for the concessions than sometimes adjacent businesses in the same area, and also usually forbid patrons from bringing in their own food to consume on the premises. A recent case before the Bombay High Court argued that this was unfair to moviegoers and the court agreed:
Bombay High Court in Mumbai
© A.Savin, Wikimedia Commons
This is an interesting little test of the judicial system – you know, those told that the Beatles were a popular beat combo – on the subject of property rights. The Bombay High Court has just failed this test too. The question is, multiplex cinemas, why is the food so expensive in them? The correct answer is because the owners of multiplex cinemas make a profit in that manner. According to the court this doesn’t wash. In fact, they seem not to have even considered the argument in that manner:
The Bombay High Court has ruled that food items and bottled water be sold at regular prices inside multiplexes. The directive was issued by a division bench of Justices S.M. Kemkar and M.S. Karnik last week in response to a Public Interest Litigation (PIL) filed by Mumbai resident Jainendra Baxi. He had challenged the prohibition on carrying outside food in movie theatres and multiplexes across Maharashtra.
The economics here is simple enough. The people who order food inside the cinema, at those higher prices, subsidise the others who only buy the ticket to see the movie. Sure, that’s not the first round outcome, but it is the competitive equilibrium. Cinema owners being able to profit from food makes the basic ticket cheaper.
The rights based part is also simple enough. I’m running a business, I can and should be able to decide how people access that business. If I’m running a restaurant I’m entirely at liberty to insist that you only get to consume things at my table that you’ve bought from me. Even if I show a film at the same time.
Another way to put this is that the judges have just failed Chesterton’s Fence. They’ve not grasped why the limitation is in place to start with, therefore they see nothing wrong in ridding everyone of the limitation. And the net effect of this is going to be higher multiplex cinema ticket prices for everyone in Maharashtra.
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April 10, 2018
New Year’s Day in 2019 will be a big day for works finally entering public domain
The US government messed around with the copyright laws so that from 1998 until the end of this year, very little material was allowed to slip out of copyright protection and into the public domain. (Many people point their fingers at the Disney corporate lawyers and their pliable friends in Washington DC for this oddity.) In The Atlantic, Glenn Fleishman explains some of the legal issues that will finally begin to allow works to enter public domain status in the US normally next year:
The Great American Novel enters the public domain on January 1, 2019 — quite literally. Not the concept, but the book by William Carlos Williams. It will be joined by hundreds of thousands of other books, musical scores, and films first published in the United States during 1923. It’s the first time since 1998 for a mass shift to the public domain of material protected under copyright. It’s also the beginning of a new annual tradition: For several decades from 2019 onward, each New Year’s Day will unleash a full year’s worth of works published 95 years earlier.
This coming January, Charlie Chaplin’s film The Pilgrim and Cecil B. DeMille’s The 10 Commandments will slip the shackles of ownership, allowing any individual or company to release them freely, mash them up with other work, or sell them with no restriction. This will be true also for some compositions by Bela Bartok, Aldous Huxley’s Antic Hay, Winston Churchill’s The World Crisis, Carl Sandburg’s Rootabaga Pigeons, e.e. cummings’s Tulips and Chimneys, Noël Coward’s London Calling! musical, Edith Wharton’s A Son at the Front, many stories by P.G. Wodehouse, and hosts upon hosts of forgotten works, according to research by the Duke University School of Law’s Center for the Study of the Public Domain.
Throughout the 20th century, changes in copyright law led to longer periods of protection for works that had been created decades earlier, which altered a pattern of relatively brief copyright protection that dates back to the founding of the nation. This came from two separate impetuses. First, the United States had long stood alone in defining copyright as a fixed period of time instead of using an author’s life plus a certain number of years following it, which most of the world had agreed to in 1886. Second, the ever-increasing value of intellectual property could be exploited with a longer term.
Here’s a graphical representation of how the copyright laws interact with Amazon’s ability/interest in stocking or otherwise making available older still-in-copyright works (graphic from 2015):
So, what’s the Disney connection?
The details of copyright law get complicated fast, but they date back to the original grant in the Constitution that gives Congress the right to bestow exclusive rights to a creator for “limited times.” In the first copyright act in 1790, that was 14 years, with the option to apply for an automatically granted 14-year renewal. By 1909, both terms had grown to 28 years. In 1976, the law was radically changed to harmonize with the Berne Convention, an international agreement originally signed in 1886. This switched expiration to an author’s life plus 50 years. In 1998, an act named for Sonny Bono, recently deceased and a defender of Hollywood’s expansive rights, bumped that to 70 years.
The Sonny Bono Act was widely seen as a way to keep Disney’s Steamboat Willie from slipping into the public domain, which would allow that first appearance of Mickey Mouse in 1928 from being freely copied and distributed. By tweaking the law, Mickey got another 20-year reprieve. When that expires, Steamboat Willie can be given away, sold, remixed, turned pornographic, or anything else. (Mickey himself doesn’t lose protection as such, but his graphical appearance, his dialog, and any specific behavior in Steamboat Willie — his character traits — become likewise freely available. This was decided in a case involving Sherlock Holmes in 2014.)
The reason that New Year’s Day 2019 has special significance arises from the 1976 changes in copyright law’s retroactive extensions. First, the 1976 law extended the 56-year period (28 plus an equal renewal) to 75 years. That meant work through 1922 was protected until 1998. Then, in 1998, the Sonny Bono Act also fixed a period of 95 years for anything placed under copyright from 1923 to 1977, after which the measure isn’t fixed, but based on when an author perishes. Hence the long gap from 1998 until now, and why the drought’s about to end.
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