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Re: William Patry Copyright Blog


From: rjack
Subject: Re: William Patry Copyright Blog
Date: Sun, 03 Aug 2008 17:01:24 -0400
User-agent: Thunderbird 2.0.0.16 (Windows/20080708)

AES wrote:
In article <address@hidden>, rjack
<address@hidden> wrote:

2. The Current State of Copyright Law is too depressing...

Copyright law has abandoned its reason for being: to encourage learning and
 the creation of new works. Instead, its principal functions now are to
preserve existing failed business models, to suppress new business models
and technologies, and to obtain, if possible, enormous windfall profits
from activity that not only causes no harm, but which is beneficial to
copyright owners. Like Humpty-Dumpty, the copyright law we used to know can
never be put back together again: multilateral and trade agreements have
ensured that, and quite deliberately.


WIth a few minor rephrasings, Professor Patry could be describing our whole
current patent system as well!

Article I, ยง 8, of the Constitution provides:

"The Congress shall have Power . . . to Promote the Progress of Science and
useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings. . ."

Obviously Congress is responsible for the current copyright mess and the Supreme
Court grants Congress great deference in copyright matters:

"[I]t is Congress that has been assigned the task of defining the scope of the
limited monopoly that should be granted to authors ... in order to give the
public appropriate access to their work product." SONY CORP. V. UNIVERSAL CITY
STUDIOS, 464 U. S. 417,429 (1984)

In 1990 the Supreme Court held:

"Congress has created a balance between the artist's right to control the work
during the term of the copyright protection and the public's need for access to
creative works. Absent an explicit statement of congressional intent that the
rights in the renewal term of an owner of a preexisting work are extinguished
when his work is incorporated into another work, it is not the role of this
Court to alter the delicate balance Congress has labored to achieve."; Stewart
v. Abend, 495 U.S. 207 (1990)

This could be paraphrased in 2008 as:

"Lobbyists have created a balance between the artist's right to control the work
during the term of the copyright protection and the public's need for access to
creative works. Absent an explicit statement of lobbying intent that the rights
in the renewal term of an owner of a preexisting work are extinguished when his
work is incorporated into another work, it is not the role of this Court to
alter the indelicate balance lobbyists have labored to achieve."

Sincerely,
Rjack

"Facts are stubborn things; and whatever may be our wishes, our inclinations, or
the dictates of our passion, they cannot alter the state of facts and evidence."
-- John Adams, 'Argument in Defense of the Soldiers in the Boston Massacre
Trials,' December 1770


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