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Comment Re:Mickey Mouse copyirght extenstions... (Score 1) 153 153

If the copyright on "Steamboat Willie" expired, anyone could copy the work or create derivative works from it featuring a similar character, but they could not call the character in derivative works Mickey Mouse, nor use Mickey Mouse's image in such works.

No, when the Steamboat Willy copyright expires, there is no longer a copyright which prohibits people from making or distributing additional copies of the work, from publicly performing or displaying the work, or from preparing new derivative works based on it (such as a new Mickey Mouse short in which he commands a homemade submarine powered by barnyard animals or something). Of course, attributes of the Mickey Mouse character which originated in later, still copyrighted material would not be available; thus you're using the original 1928 black and white Mickey, or forking a new version of the character off from there. Can't give him a dog named Pluto, nor even the distinctive Mickey Mouse voice, as those both appeared in later films.

They would, however, be able to still freely copy the original work even though it featured said character that is still under trademark because the copy of the work is not considered a new work, it is considered a *COPY*

I don't know why that would matter from a trademark perspective. Trademark is concerned with goods bearing a mark all originating from the same source, so as to protect consumer expectations regarding consistent levels of quality. Even the goods of two different sellers are indistinguishable, that alone doesn't mean that one is free to use the trademark of the other.

The trademark issue here is whether the MICKEY MOUSE trademark even survives, at least with regard to goods such as motion pictures. This is because the MICKEY MOUSE trademark is inescapably connected to the Mickey Mouse character, and now the character is free for all to use, meaning that his presence in a work no longer indicates that it comes from a single source. That -- the freedom to use the character, and the loss of the single source expectation of consumers -- is what kills the trademark. And we know that the copyright lapsing will control what happens to the trademark based on precedents like Dastar (where the Supreme Court said that trademark is not allowed to operate like a perpetual form of copyright), and SHREDDED WHEAT (where the Supreme Court said that where a patent expires, anyone is free to use the invention and to use the previously trademarked, descriptive name of the invention).

the work uses the trademark with permission

First, there would largely no longer be a trademark. Second, that would be clear naked licensing, which would likely invalidate the mark anyway.

Comment Re:Mickey Mouse copyirght extenstions... (Score 1) 153 153

Sorry, but no. If anyone can make a copy of a work featuring a trademarked character, then the trademark on that character, with regard to goods that are copies of creative works, has to lapse, as the mark has become generic in that context. Once the door is opened for multiple sources of identically marked goods, it kills the trademark. This is just the copyright version of the SHREDDED WHEAT case from the 1930s, plus a bit of the more recent Dastar case.

And the trademark can't prevent people from copying works or creating new derivative works that feature the same trademarked characters.

You're thinking of something more like nominative use, in which a third party can use a mark without permission under certain circumstances. I'm saying that there would no longer be an applicable mark at all.

Comment Re: Mickey Mouse copyirght extenstions... (Score 1) 153 153

There is no stripping of assets.

The natural state of a creative work is to be in the public domain. Authors do not create copyrights; the public creates them (through our servant, the government), with the public benefit in mind. Some works aren't even eligible for copyright at all, because it wouldn't be for the public benefit. When a copyright is granted, it is for a limited period of time, because a perpetual copyright can never be for the public benefit.

Thus, a better way to imagine the situation is this: if the government owns a parcel of public land, such as a small building suitable for a restaurant at a visitor's center in a national park, it can rent the restaurant space to a private business for a period of time. So long as the restaurateur makes his rent and follows other previously agreed upon terms (e.g. compliance with applicable law, signage that complies with the standards set by the park administrators, etc) he is free to profit as much as he can.

But when the lease expires, the restaurateur cannot argue that his business venue has been taken from him, even though it might be a profitable location forever. It was never his to begin with; he just got to use it for a while.

Regarding Mickey Mouse, copyright policy has to ignore subjective assessments of artistic value. What's important is getting as many works as possible created, published, and into the public domain (and as close to the public domain as possible until fully in the public domain). That's how you best serve the public interest.

And if an author argues that his private interest is more important than the public interest, that's all well and good, and I don't have a problem with his self interest (indeed, we're relying on it to motivate him), but why should the public ignore its own collective self interest? As there's no possibility of a copyright without it being granted by the public, authors are not in a strong bargaining position.

Comment Re:I think they might'a meant to say something els (Score 1) 153 153

Actually, the Copyright Act was replaced entirely in 1976 (becoming effective in 1978), and has been amended some, yet in substantial ways, since then. Noises are being made about a new Copyright Act coming along in the near future.

The person who wrote the summary is a bit confused. What happened is that the Warner claim was based on a copy published in 1935. Evidence was discovered of a copy that was published in 1927. That's not terribly interesting, but a copy published in 1922 has also come to light. That is interesting, because the cutoff for copyright on published works is 1923. (Due to the duration of copyright prior to the effective date of the 1976 Act, which retroactively lengthened the term of copyrights that were still in force)

Comment Re:Mickey Mouse copyirght extenstions... (Score 1) 153 153

Disney holds a trademark on Mickey Mouse, and can retain said ownership into perpetuity. That aspect alone can rightfully keep anyone else from utilizing the character in their own works, forever,

No, that part of the trademark will lapse when the copyright terminates. A trademark can't function as a substitute for a copyright. The remainder of the trademark might prevent people from selling MICKEY MOUSE brand breakfast cereal, but it would not stop them from using the character in their own works.

This is really the main reason that Disney is concerned about copyright terms; they know what would happen to the trademark.

Comment Re:Invasion of the DMCA trolls? (Score 1) 153 153


Copyright is utilitarian from top to bottom.

Copyright is only tolerable if it is better for society than not having it. One specific implementation of copyright is better than another if it provides a greater benefit for the public than the alternative.

It's no more based on fairness than a zoning regulation requiring a certain setback from the street.

Comment Re: Mickey Mouse copyirght extenstions... (Score 1) 153 153

A small nit here:

An exclusive right isn't a right that is held only by one party (and in fact, copyrights can be held by many parties), but is literally a right to exclude others.

So copyright isn't a right to make copies (that's free speech, and it applies even to works that aren't eligible for copyright). It is instead a right to exclude other people from making copies, and from doing certain other things with regard to the protected work.

Comment Re: Mickey Mouse copyirght extenstions... (Score 1) 153 153

As far as copyright on the glyphs for the letter font goes, the consumer or manufacturer who uses them, pays or has to pay for their use. I'm sure Microsoft and Apple license the various fonts included in their respective OSes.

Letter shapes are not copyrightable in the US. They may be eligible for a design patent, but that's relatively short-lived. Usually the only protectable thing, especially over a decent timeframe, is the name, as a trademark. That's why Apple's version of Helvetica from way back was called Geneva, and Microsoft's was called Arial.

How about forcing these descendents to donate their parents' assets to the public domain, just like copyrighted works?

We do.

We impose taxes on inheritances, because inheritance of substantial wealth is harmful to society. We impose taxes on property, because ownership of large, unproductive estates is harmful to society. We abolish property rights like the fee tail because inalienable property rights are harmful to society.

All property rights, beyond what an individual person can defend from others by force, relies entirely on the willing cooperation of others. The only reason I don't own the Brooklyn Bridge is because I can't convince enough people that I do. But if I were more convincing (or could overcome the force that would be mustered against me if I just tried to block others' access to it), my right of ownership would be perfectly legitimate.

Copyright operates similarly; no author has a right to tell others that they can't make copies, etc. of a work, merely because the author created it. All the author can do is keep the work a secret, if he's worried about that. Or he can convince others to respect his wishes. Just as you might not like to recognize my right of ownership of the Brooklyn Bridge merely because I really, really want you to, so too are third parties unlikely to honor a claim of copyright unless it provides some benefit to them that would not be enjoyed otherwise.

And so the deal with copyright is that we're willing to recognize an author's claim of copyright for a little while, because it seems to be useful to society, but eventually we're going to stop, and instead treat the work as being in the public domain, for the same reason. Authors can't stop that from happening, and there's too little benefit for the public in a perpetual copyright to bother recognizing them. It's a one-sided deal in favor of the public, but thems the breaks.

Comment Re:Mickey Mouse copyirght extenstions... (Score 1) 153 153

The whole point of copyright was to encourage writers and publishers and artists to invest time in making a good product.

No, the whole point of copyright was to promote the progress of science (which is an archaic term for knowledge) and to thus serve the public interest.

Half of that involves encouraging authors to create and publish works which they would not have created and published but for copyright. But the other half is to grant the least amount of protection, for the least amount of time, that is necessary to accomplish that.

And the success of any copyright law is measured in how much of a benefit it provides for the public (in terms of the number of works created and published), less how much harm it causes the public (by restricting the free use of the works).

The idea of copyright ... was to provide payment for services rendered, which would encourage creators to make more quality products in the future.

No. First, copyright doesn't guarantee any reward for the author or publisher; that's left to the market. All copyright does is funnel some of the profits available for the work toward the copyright holder. If a work is a flop, the copyright holder doesn't make any money.

Second, copyright doesn't care about quality. A brilliant work gets as much protection as a crappy one, (and again, the market may reward crappy works over 'quality works). This is necessary because artistic value is a matter of subjective judgment that the government should not be involved in. Quantity is the only permissible metric, and since a larger number of works will tend to result in a larger number of 'quality' works (see Sturgeon's Law) it's all okay in the end.

Comment Re:Mickey Mouse copyirght extenstions... (Score 1) 153 153

Until relatively recently the only way to obtain a copyright was to explicitly submit the material to the Library of Congress for certification at which point you were granted a 14 year exclusive use. You could apply for an additional 14 year grant but after 28 years the material would be forced to fall into the Public Domain and permanently accessible from the Library of Congress. You had those maximum of 28 years to make as much return on your investment as possible, but you were expected to then reinvest that return into new ventures.

"Relatively recently?" What are you, a highlander?

The 14+14 term you describe lasted from 1790 to 1831. Then it became 28+14. And in 1909, it became 28+28. That's the term that changed relatively recently, in 1978, to life + 70, etc.

Still, kudos on the general thrust of your argument.

Comment Re:Mickey Mouse copyirght extenstions... (Score 3, Informative) 153 153

Well, it's a little more complicated than that.

The sine qua non of a trademark is that all goods with the same mark originate from the same source. If this is true, the mark can be protected. If not, the mark cannot be protected. This is why trademark holders are always concerned with infringers; if the infringer is not stopped, there will be identically marked goods originating from different sources, and the protected status of the mark is jeopardized and can be lost.

Trademarks and copyrights only sometimes overlap with regard to the subject matter that they protect (e.g. a very artistic trademark could be protected by copyright as a work of art; a mere word used as a trademark could not be copyrighted, however). However, copyright is considered the superior right; a trademark is not allowed to function as a substitute for a copyright, nor to interfere with copyright policy.

This means that if the trademark is a character from a creative work, and the work is in the public domain, copyright law allows everyone to make copies and use the work and thus the character from the work, as they see fit. Trademark rights in the character can't interfere with this, so to the extent that there is a conflict, the trademark loses.

So the MICKEY MOUSE trademark might survive with regard to products unrelated to creative works, like those ice cream bars that looked like a Mickey Mouse head. But it would not survive with regard to movies, books, comics, television shows, etc. And I wouldn't want to bet money on whether it would survive with regard to things like t-shirts or hats that might feature Mickey Mouse in an ornamental capacity, rather than as a trademark. So a lot of the merchandising gravy train would derail.

Comment More programmers means more libertarians (Score 1) 352 352

There's a fascinating essay, written by Stu Reges, who was at one time Chief Reader for the AP Test in Computer Science, and later National Director of the Libertarian party. In the essay, copied below, he speculates on why so many programmers are libertarian. My spin on this is that for many things our brains exhibit two-way causality: When you're happy you tend to smile. But smiling out of the blue also causes a feeling of happiness. Will learning to think like a programmer cause people to start thinking about society the way a libertarian does?

I'd be curious to know, among Slashdot readers, whether the essay below rings true. Are you a programmer? A libertarian?


Libertarian IQ

I'm finally making good on my promise to post my "wild speculations" about Computer Science IQ and Libertarian inclination.

First let me give some background on CS IQ. I have taught at least 5,000 students how to program, which has given me a strong set of hunches about what goes on in their heads. But the most useful source of information came from my work as Chief Reader for the Advanced Placement Exam in Computer Science.

AP programs allow high school students to take college-level courses at their high schools and take a test that allows them to receive placement and usually credit for their work. As with all AP exams, the AP/CS Exam is divided into two parts: multiple-choice and free-response. In the free-response section, students hand-write solutions to problems. This has always been considered an integral part of the AP program because of the (at least perceived) limitations of multiple-choice tests. The AP/CS exam had 50 multiple-choice and 5 free-response questions. The free-response questions were all of the form, “Write a piece of code that does the following"

Obviously, the hand-written solutions need to be graded by real people. Every year about 60 CS teachers (called “readers") get together for 6 days to grade 10,000 exams. As Chief Reader, I was responsible for choosing the 60 teachers, managing their efforts for those 6 days, and setting the ultimate distribution of AP grades. In 1988 I made AP history by giving the all-time worst set of AP grades ever given out (I failed almost half of them). As a result, ETS approved a request they had never approved before. They gave me a diskette (actually 2) with the raw scores for all 10,000 candidates so that I could “study" it. My undergraduate degree is in math with a statistics specialization, so I’m the kind of person who likes to play with data.

One of the things I looked at was the set of correlations between various multiple-choice questions A high correlation between 2 test items indicates that candidates performed similarly on those items (i.e., those who got one right tended to get the other right and those who got one wrong tended to get the other wrong). I expected to find either virtually no correlations, because there was little repetition on the test, or clusters of correlations. If you were to test people on math, for example, you might find that arithmetic questions correlated highly with arithmetic questions, algebra questions correlated highly with algebra questions, geometry questions with geometry questions, and so on. I expected a similar pattern based on various programming constructs/skills.

What I found was highly puzzling. Five multiple-choice questions were each correlated with over a dozen other questions and I found virtually no other correlations at all. But there was no pattern to the correlations for these five. Let me describe the grandaddy as an example. One had more correlations than any other and I nicknamed it the “grandaddy." It was highly correlated with 25 other questions, yet the topic that it tested had nothing to do with the topics covered by these other questions.

When I looked at correlations between multiple-choice and free-response, I became even more puzzled. There was definitely repetition between the two halves of the test. For example, we had a free-response question about a technique called recursion and we also had several recursion multiple-choice questions. So were the multiple-choice recursion questions the most highly correlated with the recursion free-response question? Nope. The grandaddy was! Even though the grandaddy had nothing to do with the topics being tested in ANY of the five free-response items, it was the #1 correlated question for 4 of the 5 and was #2 for the fifth. Furthermore, the group of five questions mentioned above were in all cases among the top 6 correlated multiple-choice questions for each of the free-response items, and usually they were the top five.

Either I stumbled upon some kind of statistical fluke, or there was something special about these 5 multiple-choice questions. Flukes like this are highly unlikely with a pool of 10,000. Also, as I studied other aspects of the data, I was surprised to find these same five questions appear in the answer to two completely unrelated questions I pursued. I won’t bore you with the details, but suffice it to say that I found even more evidence that these questions were more “central" than the others.

My theory is that these 5 are CS IQ questions (particularly the grandaddy). I presented my data to CS faculty and students at Stanford, and they seemed to agree with my conclusion. They also gave me some interesting feedback about the five questions themselves. Everyone who looked at them agreed that they “felt" like the kind of questions that would distinguish a computer scientist. One faculty member described them as “the intersection of logic and programming." A more apt description given by another faculty member who had taught intro courses himself was that each question required a model of computation, and in his experience, this was the prime distinction he had seen between those who could program and those who could not. It was also obvious from the questions that logic and recursion are highly related to CS IQ.

Let me say a bit more about what I mean by a model of computation. Programmers are able to “play computer" in their head (sometimes requiring the aid of a scrap of paper). In other words, we have a model of exactly what the computer does when it executes each statement. For any given program, we have a mental picture of the state the computer is in when execution begins, and we can simulate how that state changes as each statement executes. This is rather abstract, so let me try to explain by giving a specific example.

Let me tell a story that is typical of those I heard from the TAs who worked for me at the computing center. A student comes up to the TA and says that his program isn’t working. The numbers it prints out are all wrong. The first number is twice what it should be, the second is four times what it should be,and the others are even more screwed up. The student says, “Maybe I should divide this first number by 2 and the second by 4. That would help, right?" No, it wouldn’t, the TA explains. The problem is not in the printing routine. The problem is with the calculating routine. Modifying the printing routine will produce a program with TWO problems rather than one. But the student doesn’t understand this (I claim because he isn’t reasoning about what state his program should be in as it executes various parts of the program). The student goes away to work on it. He comes back half an hour later and says he’s closer, but the numbers are still wrong. The TA looks at it and seems puzzled by the fact that the first two numbers are right but the others don’t match. “Oh," the student explains, “I added those 2 lines of code you suggested to divide the first number by 2 and the second by 4." The TA points out that he didn’t suggest the lines of code, but the student just shrugs his shoulders and says, “Whatever." The TA endeavors to get the student to think about what change is necessary, but the student obviously doesn’t get it. The TA has a long line of similarly confused students, so he suggests that the student go sit down and think through his calculating procedure and exactly what it’s supposed to be doing. Half an hour later the student is back again. “While I was looking over the calculating procedure, a friend of mine who is a CS major came by and said my loop was all screwed up. I fixed it the way he suggested, but the numbers are still wrong. The first number is half what it’s supposed to be and the second is one-fourth what it’s supposed to be, but the others are okay." The TA considers for a moment whether he should bring up the student on an honor code charge for receiving inappropriate help, but decides that it isn’t worth it (especially since that line of similarly confused students is now twice what it was an hour ago). He asks the student whether he still has those lines of code in the printing routine that divide by 2 and 4 before printing. “Oh yeah," the student exclaims, “those lines you said I should put in. That must be the problem." The TA once more politely points out that he didn’t suggest the two lines of code, but the student again shrugs and says, “Whatever. Thanks, dude!"

The student in my hypothetical story displays the classic mistake of treating symptoms rather than solving problems. The student knows the program doesn’t work, so he tries to find a way to make it appear to work a little better. As in my example, without a proper model of computation, such fixes are likely to make the program worse rather than better. How can the student fix his program if he can’t reason in his head about what it is supposed to do versus what it is actually doing? He can’t. But for many people (I dare say for most people), they simply do not think of their program the way a programmer does. As a result, it is impossible for a programmer to explain to such a person how to find the problem in their code. I’m convinced after years of patiently trying to explain this to novices that most are just not used to thinking this way while a small group of other students seem to think this way automatically, without me having to explain it to them.

Let me try to start relating this to libertarian philosophy. Just as programmers have a model of computation, libertarians have what I call a model of interaction. Just as a programmer can “play computer" by simulating how specific lines of code will change program state, a libertarian can “play society" by simulating how specific actions will change societal state. The libertarian model of interaction cuts across economic, political, cultural, and social issues. For just about any given law, for example, a libertarian can tell you exactly how such a law will affect society (minimum wage laws create unemployment by setting a lower-bound on entry-level wages, drug prohibition artificially inflates drug prices which leads to violent turf wars, etc.). As another example, for any given social goal, a libertarian will be able to tell you the problems generated by having government try to achieve that goal and will tell you how such a goal can be achieved in a libertarian society.

I believe this is qualitatively different from other predictive models because of the breadth of the model and the focus on transitions (both of which are also true of programming). On newsgroups I often see questions like: If we were in situation A and government took action X, what would happen? If we were in situation B and a corporation took action Y, what would happen? If we were in situation C and an individual took action Z, what would happen? Libertarians almost always quickly answer by saying, “I’ll tell you exactly what would happen" And, surprisingly, the libertarians tend to give the same answer in most cases. I think most people find this odd about libertarians. They understand how an economist might be able to predict the effect of a certain law on the economy or how a social scientist might be able to predict how drug legalization might affect the ghettos, but they don’t understand how somebody could predict all of these things, especially someone who has no formal training. Libertarians, on the other hand, don’t seem to understand how someone could fail to have such a model of interaction (it would almost be like having a Supreme Court judge who had never thought about Roe vs. Wade – ha ha). The nonlibertarians have no comprehensive model of interaction, and as a result, they can’t communicate in a meaningful way with those who do. Their attention is always focused on misleading superficial problems rather than on the underlying causes of such problems.

When I observe how most people approach politics, it reminds me of the way my hypothetical student approached his program. A person notices that some people are making $1 and $2 an hour and are having difficulty managing financially on such a sum. This seems bad and they want to fix it. But they have no model of interaction that would allow them to reason about what might cause such a result. So they decide to pass a minimum wage law so the problem will go away. And it does (apparently). There aren’t any poor people making $1 and $2 an hour anymore. But there are suddenly lots of unemployed people who have to live off welfare (a new problem). Does the person make the connection and realize that they caused this problem? Not without a model of interaction. So instead they say we have to fix the unemployment problem. And then we have to fix the new problems generated by the fix to the unemployment problem. And then we have to fix the new problems generated by the new fixes. And so on.

If you suggest that eliminating minimum wage laws and the government interference that made those people so poor in the first place would be a better solution, they look at you incredulously and say you must be crazy. This is just like the situation with my TA and the student who had added 2 lines of code to make the numbers print out correctly (“Are you crazy? Why would I delete those lines of code when the numbers would then print out incorrectly?" Because the problem is elsewhere, and that’s the problem you should be addressing, but that’s difficult to explain to someone who doesn’t have a model of how his program works). Seriously, I think the credibility gap that existed between my TAs and the students who sought their help is similar to the credibility gap between libertarians and nonlibertarians. And I also suspect that the gap will continue to exist unless and until those other people learn to think in terms of a comprehensive model of interaction.

As usual, I’ve talked more than I should. I’m not sure that I’ve made my point very well, but I think it would require a great deal more time for me to make this more comprehensible. I suspect that the programmers who read this message will understand me, but the others might not. Anyway, I think I’ll leave it mostly at that, but add a few related comments.

Don Knuth, who wrote the CS equivalent of The Bible, says that the thing that most distinguishes computer scientists is their ability to “jump levels of abstraction." I mentioned that programmers can “play computer," but what good is that when you are working on a 100,000-line program? It would take so long to simulate the thousands of instructions and the vast amount of data that you’d never get anywhere. But programmers get around this by using abstraction. A programmer can reason about the top-level execution of a program, for example (a macro-view, if you will). But when necessary, he can focus in on a program module, or a single subprogram, or a single loop, or a single line of code (more and more of a micro-view). A programmer can even, when necessary, reason about how that line of code will be translated into machine-code and even what changes are likely to happen to the physical hardware involved. A programmer understands a program at all of these levels of abstraction. It is essential that he can jump quickly between levels, and relate information at one level to information at another level, if he is to be able to eliminate problems in his code. I think libertarians also exhibit this behavior. A libertarian can comfortably tell you how governments interact with each other, how governments interact with corporations, how corporations interact with each other, how corporations treat individuals, and how individuals interact with each other. It would be impossible to have a model of interaction without these levels of abstraction and without being able to jump between levels when necessary (e.g., saying, “If government A passes law X, that is likely to pressure government B to also pass law X, which causes the corporations controlled by government B to take action Y, which causes individuals working for those corporations to take actions Z and W.")

Another link between libertarianism and programming is that the principles of good programming are closely related to libertarian ideals. We call it “top-down programming," but anyone who has studied structured programming knows that “central planning" is quite different. A well-structured programming will have high-level modules that are loosely-coupled (i.e., as independent as possible). This means that at the highest level, a program should minimize tasks so that it performs only those tasks that are essential. In other words, “that program is best that programs least." This is the principle of decentralized government. As another example, the structured programming concept of information hiding is really the libertarian belief in privacy. Information hiding says that the internal details of a subprogram should be independent from other subprograms (in fact, the goal is to have them INVISIBLE to other subprograms). This is like saying that the private choices made by one individual that affect only that individual should not be influenced by other individuals (and would ideally be kept entirely confidential).

I mentioned the importance of logic to CS IQ. I believe it is equally important to libertarian philosophy. From my observation, libertarians tend to think that all political questions can be answered with an almost mathematical certitude. There is no such thing as “a friendly disagreement" in mathematics. If two mathematicians disagree, then one is mistaken. Similarly, if two libertarians disagree, each asserts that the other is either operating from a false assumption or has a flaw in his logic. I think nonlibertarians are really turned off by this, particularly because it comes across as obnoxious and egotistical. But libertarians seem to thrive on it. The community has a kind of intellectual-warrior ethos.

How many surrealists does it take to screw in a lightbulb? One to hold the giraffe and one to fill the bathtub with brightly colored power tools.