Re: NBA v. Motorola

(RE: Vance Koven's query about preemption and unprotectable works.)

I believe the issue turns on the resolution of the following question: "Is the work not copyrightable because Congress does not have power to protect it under the constitution, or because Congress chose to limit the eligibility of otherwise eligible works in order to carve out a rich public domain?" If the former, then preemption should not be at stake; if the latter, then it should.

Another way to pose the issue is to ask, "Would it be unconstitutional for Congress to extend the definition of "works of authorship" to include creations that presently are uncopyrightable?"

The answer may depend very much on the nature of the particular creation.

Christopher Pesce
<chrisp[_at_]corbis.com> Received on Fri Feb 07 1997 - 23:28:23 GMT