Re: copyrighting of numbers

On Mon, 11 May 1998, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> 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?

I can't comment on whether I agree with those cases without reading them. I suspect that they were applying copyright law, in which case, the holding is likely to be as to the effect of the particular statute, not whether the works themselves were within the constitutional scope of the clause.

As a matter of clarification, I am not saying that no compilations are writings in the constitutional sense. I am saying that, to the extent that a work lacks any originality, it is not a writing of an author and therefore outside of the scope of the Copyright Clause.

I would agree that to the extent that a work is original and therefore within the scope of the Copyright Clause, legislation as to the original aspects would not be possible.

--
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.)