Re: Re: Conde Nast vs. Blackmask (copyright infringement)

At 6:15 PM -0400 4/14/06, Steven Jamar wrote:
>On Apr 14, 2006, at 10:50 AM, J. Noble wrote:
>
>>I
>>
>>The scope of the right, taking into account the policy
>>considerations, was largely defined by Congress in sec. 106. I'll
>>grant that the statute is trumped by the "constitutional
>>framework," but I didn't hear Prof. Jamar offer a constitutional
>>argument for compulsory license. I heard an equitable argument. My
>>point was that the copyright holder doesn't need equity if he has
>>sec. 106. It is the compulsory license that depends on the
>>licensee's claim to equity. I can't think of a situation in which
>>the legal right under the Act is trumped by equity, which usually
>>stands in when there isn't a statute.
>>
>
>1. tolling the statute of limitations
>2. misuse
>
>I am not claiming that such an equitable license exists at present.
>I just think it is a provocative idea and as a potential legal
>theory gets one well past the giggle threshold. And I am not
>advocating it. But I would not so easily dismiss it out of hand,
>either.

I didn't dismiss it easily. I was serious when I said it was thought-provoking. I think it is largely bad policy, but the Microsoft/Apple hypo has me thinking.

>The Copyright Act doesn't provide for contributory infringer
>liability either, but the courts found a way. Fair use was invented
>by the courts and is now in the statute. I find the idea that in
>the US the courts cannot continue to develop copyright law rather
>curious in light of Grokster.

As long as their are new ways to infringe (or not), the law will continue to develop.

John Received on Mon Apr 17 2006 - 20:10:00 GMT