Re: copyrighting of numbers

On Fri, 8 May 1998, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> I don't think the constitutional issue can be dismissed this easily.

I believe that it is.

> Suppose Congress, relying on the recently-discovered writings of Mark
> Twain, were to enact perpetual copyright protection. [They're close
> enough already, but that's another story]. Litigants would surely
> object that it violates the "limited times" provision of the Copyright
> Clause. "Aha," reply the crafty legislators [this is a hypothetical,
> you'll recall], "but we didn't enact the law under the Copyright Clause
> -- we enacted it under the Commerce Clause. And the Commerce Clause has
> no such limitation."
>
> Is this bill constitutional?

No, because it purports to protect an author's writings. The works in question fall within the scope of the Copyright Clause. In contrast, a pure sweat-of-brow compilation is not an author's writings, and the Copyright Clause simply has nothing to do with it.

> if the Court was serious in Feist that originality is a constitutional
> requirement, then arguably Congress can't simply change the words from
> "copyright" to "database right" and evade the command of the Copyright
> Clause.

You mean like it did in 17 USC 1101?

--
Terry Carroll       |    "'Reprehensible' is just a five-syllable
Santa Clara, CA     |    word for 'scumbag.'"
carroll[_at_]tjc.com     |               - U.S. Congressman
Modell delendus est |                 Christopher Cox (R-Cal.)