Re: public domain question

On Thu, Mar 30, 2000, Eric Eldred <eldred[_at_]eldritchpress.org> wrote:
>
> On Wed, Mar 29, 2000, Rod Dixon <rod[_at_]cyberspaces.org> wrote:
> >
> > ...
> > I think conceptualizing copyright as property adds more to our
> > understanding of what a copyright is than simply calling it a
> > monopoly. There is a tendency to drain all of the useful meaning
> > out of the term monopoly when you say all authors have at least one.
>
> I see from reading Professor William Fisher's cyberlaw
> course papers that I was wrong in asserting so much
> weight to the interpretation that the Framers
> intended the public domain to be the basis for
> copyright.
>
> At least one current Supreme Court justice has
> indicated some substantial agreement with the
> Lockean property or at least in popular terms
> "sweat of the brow" basis for copyright:
>
> "The rights conferred by copyright are designed
> to assure contributors to the store of knowledge
> a fair return for their labors.
> Twentieth Century Music Corp. v. Aiken, 422 U.S.
> 151, 156 (1975). "
> -- 471 U.S. 539; 105 S. Ct. 2218; 85 L. Ed.2d 588;
> 53 U.S.L.W. 4562, in Harper and Row v Nation
> Enterprises, 1985.
>
> "JUDGES: O'CONNOR, J., delivered the opinion of the
> Court, in which BURGER, C. J., and BLACKMUN, POWELL, REHNQUIST,
> and STEVENS, JJ., joined. BRENNAN, J., filed a dissenting
> opinion, in which WHITE and MARSHALL, JJ., joined, post, p. 579."
>
> at http://www.bitlaw.com/source/cases/copyright/harper.html
>
> (All of which gives me less hope that the Court
> will rule in the way I wish, and less hope that
> it will be able to escape the paradoxes of the
> one-sided property theory of copyright, along with
> this Romantic idea of the lone author genius.)

Keep the faith. I think your efforts are laudable. As for public domain works, I understand how the emphasis on monopoly could capture empathetic ears on some courts since... as the argument goes... the government ought not to extend monopolies easily (Sony Bono Act). This is a clever argument, but you could get to the same point by acknowledging that copyright is a property right, but a uniquely limited one.

Rod Dixon, J.D., LL.M.
http://www.cyberspaces.org/
rod[_at_]cyberspaces.org Received on Fri Mar 31 2000 - 12:31:19 GMT