Re: copyrighting of numbers

Terry Carroll <carroll[_at_]tjc.com> wrote:
>
> Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
> >
> > 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.
>

This is the source of our disagreement, then. All courts that I am aware of (including two decisions of the 7th Circuit) have held that compilations are "works of authorship" within the scope of the copyright clause, despite the fact that they are not "original." I take it you disagree with this result, but that you would agree that as to works within the scope of the clause, Commerce Clause legislation wouldn't be possible. Right?

Terry Carroll <carroll[_at_]tjc.com> wrote:
>
> Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
> >
> > 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?
>

Actually, no. Congress enacted 1101 as part of the copyright laws. What's the constitutional command being evaded here? If it's the "writings" requirement, I think a musical performance is just as much a writing as a house or a computer program. If it's the "limited times" problem, I suspect that if it gets litigated, a court might well hold perpetual protection for unfixed musical performances to be unconstitutional. On the other hand, since the fixation can only occur at the time of the "live" performance, one could argue that the protection is in fact quite short in duration.

Mark Lemley
<mlemley[_at_]mail.law.utexas.edu> Received on Mon May 11 1998 - 19:52:52 GMT