Re: copyright of briefs

On 10/30/96 at 08:16 AM, Bruce Hayden <bhayden[_at_]copatlaw.com> said:
>
> I think this depends on how the copyright is being enforced (and possibly
> therefore the extent of any implied license granted??)
>
> Sure, you are possibly talking retardation of the progress of knowledge
> when you try to prohibit someone from reading your brief when they are
> trying to understand the underlying case.
>
> But in the case of plagarism, this is no different than taking someone
> else's prose in a novel, or computer code in a program. Sure, you may
> retard knowledge a little. But that can be said with equal force with any
> copyright. What you have with the plargarism of briefs (in part, or in
> whole) is apprporiation of another's work product. And this is precisely
> what copyright is designed to protect.

We are proceeding from two fudamentally different philosophical bases.

The purpose of copyright is not to protect against plagiarism. It is not to pay authors compensation for work. It is not to protect any innate property right of authors.

"The copyright law, like the patent statutes, makes reward to the owner a a secondary consideration. ... 'the primary object in conferring the monopoly lie in the general benefits derived by the public....'"

• United States v. Paramount Pictures, Inc., (1948)

The purpose of copyright is to increase and spread kowledge. Giving authors a monopoly on disttirbution rights for some period of time encourages that by encouraging authors to write. In effect the retardation on the spread of knowledge caused by the monopoly is outbalanced by the encouragement of creation of more kowledge.

That purpose is thwarted when copyright is applied to works that must be produced even in the absence of copyright -- a legally required court filing, an income tax return, a SEC filing, an annual report, etc. In those cases the granting of a monopoly is all loss and no gain to the public.

I am not a good student of the Bible, but I vaguely recall some admonition that one should let the oxen eat of the grain that they thresh-- not out of benevolence but because it makes the oxen better able to thresh. So it is with copyright. We grant the monopoly, at expense to the spread of knoweldge, because it functionally encourages the spread of knowledge. Where that purpose does not exist copyright becomes a simple violation of the freedom of speech.

I think your philosophy proceeds form the assumption that an expression is the property of the author-- an idea that I think many Europeans would concur with. Copyright then is a legal protection of that property right, much like government enforcement of trespassing laws for real property.

That is not (or was not<g>) the concept of copyright in this country. Because of the First Amendment , I do not think that it can be, absent some radical retheorizing of the Constitution. Of course, that retheorizing seems to be going on and has powerful impetus as we move into the nformation age-- there are big bucks to be made.

Regards,
 John

Regards,

John Lederer
<johnl[_at_]ibm.net>

Oregon, Wisconsin Received on Thu Oct 31 1996 - 16:03:48 GMT