Re: ELDRED

Yes. The public IMHO (but not the Sp Court's binding opinion) has vested property rights in the future ability to use works at the end of the copyright term. Such an analysis is supported by James Madison's short newspaper article (c.1792) "on Property" and comes directly out of John Locke's definition of property as "the right not to be excluded." I discussed this at length in "The Owned Public Domain" 22 Hastings Comm/Ent L J. 265 (2000). However, the US Sp court is not (despite law professors' dreams) a court of theory (IMHO), it decides quite practically using its own economic and political hunches. Oversimplifying, the US Sp Court sees "private property" as real, and publicly shared property as held by the government -- and such public property can be used/misused by Congress almost any way it wants w/o accounting to the populace. Carol Rose pointed out that such public property (as in highways) was seen in early England as a public right beyond the government's power to disrupt (The Comedic Commons, Un of Chicago Law Review). Several briefs to the Sup Ct in Eldred (including mine) emphasize that the Constitutional Clause should be read as real limit on Congress' power to misuse public property because of the anti-monopoly and anti-corruption history behind the Copyright Clause, but the Supremes completely ignored all that.

Denis Borges Barbosa wrote:
>
> The problem, as I see, is not the rights of man. Is one of vested
> rights. Given the significant difference between legal systems, on
> most roman tradition systems, a right of free use subject to a certain
> delay of time is a vested right albeit not immediately enforceable (as
> to the free use). All the means to preserve the flow and end of time
> as assured at moment zero are however allowed.
>
> Once a exclusive right is acquired, subject to a definite time, all
> the persons excluded from the enjoyment by the acquisition have a
> rightful expectation of free use when the time expires. If such
> expectation is assimilable to an easement or a vested right is
> certainly a question of jurisdiction. But only so.
>
> I notice that in Sears, Roebuck & Co. V. Stiffel Co., 376 U.S. 225
> (1964), the court said:
>
> "During that period of time no one may make, use, or sell the patented
> product without the patentee's authority. But in rewarding useful
> invention, the "rights and welfare of the community must be fairly
> dealt with and effectually guarded. To that end the prerequisites to
> obtaining a patent are strictly observed, and when the patent has
> issued the limitations on its exercise are equally strictly enforced.
> (...)
>
> Ø when the patent expires the monopoly
> created by it expires, too, and the right to make
> the article - including the right to make it in
> precisely the shape it carried when patented -
> passes to the public.
>
> At 21:23 27/01/03 -0600, you wrote:
>
> > interesting, the congress has powers, the people have the ultimate
> > authority to grant and to take away the powers. So long as the
> > congress limits its exercise of powers to those specifically granted
> > to
> > the three branches of government by the collective and individual
> > rights
> > of man..and so long as the collective and individual man(homo
> > sapiens) is
> > satisfied with the exercise of that power within the authorized
> > scope?
> >
> >
> > What I cannot understand is the Supreme courts avoidance in
> > considering the underlying "rights of man" in any constitutional
> > question? the question of the scope of the authoritive grant would,
> > it
> > would seem, in conflicts which arise between the authority granted
> > to
> > government and the authority reserved exclusively to mankind; and to
> > rights granted to non humans as opposed to rights granted to others,
> > to
> > those rights, held inalienable and unique to humanity.
> >
> >
> > I presume an essential assumption is: the living humans, are the
> > representatives of mankind for the purpose of deciding the scope of
> > the
> > authorities conveyed. It will be the living humans who will be
> > called to
> > oversee the performance of their government and to enforce the
> > fiduciary
> > obligations of those who are allowed to operate the human empowered
> > government.
> >
> > That must be why Art. 5 does not limit the ways in which the
> > constitution
> > can be amended? It merely provides safe harbours ...? I have
> > always
> > wanted to understand this better? Thanks for bring it up.
> > sterling
> >
> >
> > sterling
> >
> >
> > On Fri, 24 Jan 2003, Dodi Schultz wrote:
> >
> > >
> > > Keith Handley writes,
> > >
> > > >> The Congress does not have rights; it has powers.
> > >
> > > Well, excuuuuuuuuuuuuuuuuuuuuuse me.
> > >
> > > SCOTUS said that Congress was exercising Constitutionally granted
> > *powers*
> > > when it enacted the CTEA.
> > >
> > > Okay? ;-)
> > >
> > > --DS
> > >

-- 
Malla Pollack
Visiting Associate Professor
University of Memphis, Law
mpollack[_at_]memphis.edu