Re: copyrighting of numbers

On Thu, 21 May 1998, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> Are there *any* constitutional limits to the ability of Congress to pass
> new IP laws, then? Suppose Congress said copyright exists for a limited
> time (life + 50 years). Once copyright expires, we will create a new IP
> right that provides perpetual protection. But it isn't copyright, so it
> doesn't run afoul of the Copyright Clause. Constitutional?

I would say no, because this is a statute that's within the scope of the copyright clause, but that does not adhere to its limits. It is protecting writing of an author, as that term is understodd from the Constitution. An attempt to provide limitless protection under, say, the Commerce Clause would not be valid, upon the same reasoning that the non-uniform bankruptcy laws could not be enacted under the Commerce Clause.

I'm not too concerned with whether it has the label "copyright" attached to it. That label's not in the Constitution in any event.

But it does purport to protect the writings of an author, which puts it squarely within the subject matter of the Copyright Clause, complete with that Clause's limitations.

This is contrasted with a statute that protects things that are not Writings of Authors, and are therefore outside of the scope of the Copyright Clause.

--
Terry Carroll       |    "Dreamwerks clearly caters to the  
Santa Clara, CA     |    pocket-protector niche..."
carroll[_at_]tjc.com     |       - Dreamwerks Production Group v. SKG Studio,
Modell delendus est |         case no. 96-55595 (9th Cir. Apr. 21 1998)