On 1/30/00, Bruce Hayden <bhayden[_at_]ieee.org> wrote:
>
> ...
> if the boys had survived, the tapes would have probably
> been used as evidence in their trials, and thus become
> part of the public domain.
Is there a statute or some case law that places copyrighted materials in the public domain if they are used as evidence in a trial? I would think not.
The term "public domain" is one of those legal terms that is frequently misused in popular discourse -- as I suspect it is being misused here. The most common misconception into which "public domain" falls implies that if a "protected," i.e. copyrighted work is somehow let out of whatever barrier that protects its copyright -- as when copyrighted works are posted onto the web -- or (to refer to a topic that once appeared on this list) when a copyrighted work is read into the Congressional Record, its owner can no longer protect it, and because he CAN no longer protect it, may not even have the right to protect it.
The idea that a kind of use can unravel copyright is reminiscent of the kind of loss one suffers when real property is not sufficiently protected or claimed as private over time. It also reminds one of the way "market failure" and "fair use" have come to be identified with each other -- as if "fair use" is a phenomenon that occurs because copyright owners can not be sufficiently watchful or dutiful to protect their rights.
But, in the case of the Columbine films, the idea that their creators (heirs) can lose copyright seems to me closer to a popular conception that somehow identifies right of ownership with steadfastness. Consider what happens in NYC when Giuliani's police seize ownership of someone's auto when the driver is found DWI. Of course, there is no due process, but more significantly the act of seizure exemplifies the mayor's paternalistic assumption of moral righteousness.
This is my question: Is it possible that these IP misinterpretations are very American actions and American confusions? In the popular mind ownership or value is allowed to slip away through a failure of vigilance or by a consequence of what can only be called "moral fault". Ownership is proof of moral worth; lack of ownership proves moral defect. These notions pervade our popular interpretations of copyright, if not our legal ones -- and work not just for copyright -- the idea is pervasive.
These "popular" attitudes do not always invest themselves inside the law. Even when a prisoner, writing about his crime, is prevented by law from profiting from this work, copyright is not ceded or abandoned.
As far as I know, in the US, works become public domain in only two ways: Either they are government works or copyright protections have expired. One can not even "dedicate" a work to the public domain; all one can do is to refuse to act on infringements.
Returning to the original point: Just because a work is used as evidence of a crime doesn't mean that its copyright becomes invalid or defective.
Robt Baron
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