Re: copyright under stress

On Tue, 13 Jun 2000, Marty Hayes <9ball[_at_]hostsite.net> wrote:
>
> Cast another vote here in agreement with Don Roemer and Robert
> Cumbow that copyright has to do with the right to copy and *not*
> freedom of access.

Copyright _ought_ to do only with right to copy (and perform, and display, etc.) and not to freedom of access. But there are a lot of cases where a copyright is asserted to protect interests that are not designed to be protected by copyright, and that can result in freedom of access.

Thus, in Sega v. Accolade, Sega was attempting to prevent Accolade from having the necessary access to produce its own original competitive products.

In Feist v. Rural, Rural was seeking to protect its market for the yellow page listings, which is not protected by copyright, and which could effectively be cracked only with an accompanying white pages.

In Quality King v. L'Anza, L'Anza was using its copyright in hair care product labels to protect access to its market in hair care products.

I'm citing cases where the oppressed party managed to hang in there long enough to get relief -- but let's face it, it isn't a perfect world, and that relief isn't always there. Witness that Mead Data Central had to pony up a hefty license fee to be able to have access to the market for the essentially random page numbers from West's reporters, based on a tentative decision later discredited by Feist (and expressly not followed despite nearly identical facts by the Second Circuit).

Yes, in a perfect world, copyright protects only copying of expression and not access to information or other theoretically unprotected things. But in the real world, copyright is not nearly the sharp scalpel that we'd like it to be.

-- 
Terry Carroll         |   "The United States is located in
Santa Clara, CA       |   the District of Columbia."
carroll[_at_]tjc.com       |
Modell delendus est   |       Uniform Commercial Code s. 9-307(h)