Please see some initial comments below:
--- "M. Pollack" <mpollack[_at_]memphis.edu> wrote:
> OK. I want to change the ground rules roughly back
> to when Kastenmeir
> headed the House subcommittee that deal with
> copyright etc.-- no
> increase in copyright holders' power to exclude
> others until the
> copyright holders prove (not just claim) that they
> are not getting
> enough to pay for the original creation. IMHO the
> current statute
> intentionally gives copyright holders much much
> more. But the cut back
> can be done in many different acceptable ways.
I would agree so far.
> For example, the author of a so-called derivative
> work that contains
> over 80% original content (number needs discussion)
> should not have to
> ask permission to use material from an earlier work.
> Whether the
> copyright holder of the underlying work should get a
> statutory royalty
> should depend on a flexible balancing test -- way
> David Lange proposed
> this at the Duke Public Domain Seminar roughly a
> year ago.
Is this determined on a word by word basis? Is there
consideration for the amount of the original work
copied or only the amount of the derivative that is
directly copied from the original work?
A derivative work may contain 100% of an orgiinal
work, yet the original work may only comprise a small
percent of the derivative work. For example: a poem
may be the original work, and the derivative may be a
novel containing the poem. Or a mural containing a
silk screen replica of an original photo or drawing.
> When copyrights and patents end, they should end --
> no stretch by way
> of some form of trademark or unfair competition
> rights -- in some
> circumstances, to prevent consumer confusion, the
> re-user may be
> required to provide an informative label (i.e..
> Kellogg v National
> Biscuit; Sears; Compco).
I agree. There is a recent patent/tradedress case on point that agrees as well: Traffix?
> The term of copyright should go back down to 24
> years and a renewal
> term of another 24 years. Anyone should be allowed
> to reuse any work
> she sees without a copyright notice -- though in
> some circumstances the
> copyright holder of the underlying work might be
> entitled to a royalty.
I like the more limited term with a required renewal, but I am not so sure about the notice requirement. Either, though, would be a major hurdle in light of Bern and the world's view of the US as unilateral in all the wrong ways. Not that this will stop us from waging war, but it may slow down copyright reform.
> "Divestive publication" should be decided based on
> the public's access
> to the work, not the pro-author mishmash currently
> used. A song sold on
> records etc. should be considered published.
I'm not sure what you are talking about here.
> Computer software should not be copyrightable.
I agree. The wrong tool for the job. My understanding is that computer programs never would have been copyrighted if the PTO had clearly allowed software patents in the early days of computers. People were making major innovations and were looking for protection. Patents were iffy so copyright was used: it was cheap and you could litigate later instead of trying to get the PTO to agree with you now.
If you have something truely innovative then get a patent. If not then don't expect protection for software. Of course, this would not mean that any didgital media should not be covered by copyright, just that executable files are more like machines than works of literature.
> Reading something on a computer should not be
> making an illegitimate
> copy.
I thought there was case law favoring this position. Of course, if you have legitiamet access this is not a problem.
> The look and feel theory of substantial similarity
> in copyright should
> be abandoned.
This is judge made doctrine. There is no "look and feel" language in the copyright act. I think it shoudl be more of a unfair competition issue than a copyright issue. If it confuses consumers that is a real problem.
> Research should not be patent infringement, i.e. a
> "fair use" exception
> as argued for by Maureen O'Rourke (I apologize if I
> misspelled her name)
I don't know of any patent cases where the plaintiff has gone after someone for researching a patetnted process or item, but I am relatively young. I would look at the pharmaceutical indutry and obviously generics have to do a certain amount of research before they can certify a generic. That all happens prior to the patent expiring so that the generic is released on the day after expiration. Maybe they have special exceptions.
In other industries it typically isn't worth fighting about until sales are taking place.
The hard part is deciding which uses are research. I can imagine a company having its clients field test its prototype that infringe your patent. For ten years. Their clients are your clients. there is only a market for 100 units and they are testing 75. Where do you draw the line?
> Patent should be limited to the technological arts
> (as required by the
> US Constitution). The decision on whether something
> is "patentable
> subject matter" should involve looking only at the
> "inventive step."
The European test of inventive step is not far from our own test of obviousness. The phrase you use doesn't much change the analysis. What technological arts would you limit it to and what is not a technological art? Are you addressing business method patents or something else?
> Lots of etc.
> IMHO, intellectual property rights are supposed to
> "leak." The control
> given the original creator should be no bigger than
> absolutely necessary
> to get the creator to create.
I agree.
> I invite you to have fun snipping at these
> proposals, if I don't
> respond, it will be for lack of time, not for lack
> of available
> responses.
I hope you find the time to respond. I think this is a good discussion for this list. It is much better than calling people names and dismissing their arguments.
> Long live the public domain,
> Warmly, :-) [smile]
Best regards, (no smile, but happy nonetheless)
Keith
This archive was generated by hypermail 2.2.0 : Mon Mar 26 2007 - 00:35:46 GMT