Re: Article 1, Section 8, Clause 8.

On Wed, Aug 02, 2000, Dodi Schultz <schultz[_at_]compuserve.com> wrote:
>
> On Tue, 1 Aug 2000, Christopher Gwyn <christopher[_at_]icopyright.com> wrote:
> >
> > Ultimately it does take the Supreme Court. If a case involving
> > 17 USC 201(d)(1) came to the Supreme Court they could -- in theory
> > -- declare 17 USC 201(d)(1) to be unconstitutional. It might be
> > highly unlikely that they would do so, but they have declared
> > long-standing law unconstitutional before.
>
> What are you suggesting? That all U.S. laws in general, and 17 USC
> in particular, be considered more or less tentative pending testing
> before the Supreme Court?

In a word -- Yes. It is a pretty darn stable tentativeness, but in theory it is tentative.

Greg Ikonen {gikonen[_at_]vlg.com} is probably absolutely correct in saying:
>
> The reason there has never been -- and never will be -- a Supreme
> Court case deciding whether or not a copyright holder can sell her
> copyright is that the language of Section 201(d) the Copyright
> statute couldn't be plainer:
>
> "The ownership of a copyright may be transferred in whole or in
> part by any means of conveyance or by operation of law... "
>
> [...]
> And since the section you're talking about deals with the transfer
> of property interests -- one of the cornerstones of our Republic --
> that isn't likely to happen anytime soon.

There were times in the past when the meaning of "exclusive rights to their respective writings" could have been interpreted to not be synonymous with ownership (and therefore the ability to sell), but that time is past. The assumption that "exclusive rights" does refer to a transferable property interest is too deeply ingrained, without being confirmed by the only body able to confirm it, to be legally questioned. I think the only way that the meaning of "exclusive rights" could be changed now would be by Congress acting to improve "author's rights" in a way that the majority (and it would have to be a large majority) sees as better adapting copyright to our brave new digital world. I do not see that as a likely scenario anytime in the anticipatable future.

Nevertheless, Article 1, Section 8, Clause 8 is treated as recognizing a transferable property right only because we have historically done it that way, and apparently not because the only body that can define what it means has decided what it does mean. The vagueness of the U.S. Constitution is probably one of the greatest achievements of the "Founding Fathers", it allows for a great deal of creativity in attempting to create good laws...

     Sincerely,
     Christopher

Christopher Gwyn
<christopher[_at_]icopyright.com> Received on Thu Aug 03 2000 - 16:15:14 GMT