Re: Copyright Extension Bill Passes Congress

On Fri, 16 Oct 1998, Timothy Phillips <hrothgar[_at_]telepath.com> wrote:
>
> Amy Stoller's analysis, which presupposes that copyrighted works
> are private property and that copyright infringement and copyright
> expiration are both equivalent to the alienation of a chattel, is
> wrong from the start.

Please provide some authority for this proposition. There is copious authority stating plainly that exclusive rights to a copyrighted work are personal property, and I am unaware of any that expressly holds otherwise.

> Copyrighted works, if they are "property" at all, are the PUBLIC's
> property.

Authority for this proposition? Why, then, is there case law holding that an interest in each of Copyright, Patents and Trade Secrets (I believe there are trademark cases as well, but I am not certain) are protected under the 5th Amendment takings provision?

Indeed, the argument could be made that since all property rights derive from the willingness of the public to enforce them, that all property rights are the public's. The theory that property interests can escheat to the state at all derives from the sentiment that it is the state that has root ownership in property.

> The expiration of a copyright is little like the alienation of a
> chattel. It is more like the completion of the terms of a mortgage.

Analogy wars again? It is certainly true that a copyright interest, or indeed any interest in personal property is not identical to an interest in, say, real estate. But so what? Does this make personal property "less" property than real estate?

How about the expiration of a defeasible fee interest with condition based upon the passage of time? Life estate autre vie? Or the expiration of a lease? In each cases, a property interests can expire?

> The public, in this analogy, is like a homeowner who was close to
> paying off the mortgage. Copyright extension is analagous to a
> situation in which suddenly the bank sends a bunch of tough guys
> who say, "we've decided that the house should have cost more than
> you paid for it. You owe us 20 more years of house payments."

The poster's analogy is not the best. Why can't a Copyright be more like the grant of letters patent of a defeasible estate in real estate for a fixed term, or the grant of a fixed term lease in some rights? In each case, the public had ownership of the rights until they were granted to an individual. The individual holds his or her interest in land until the term expires. Now it can be treated (at least by analogy) as any other government grant of a property interest.

But of course, as I noted above, analogy wars are not the best vehicle for analyzing and understanding these rights.

> Occasionally in the world of business prices are renegotiated after
> the fact. If the old term of copyright had truly been unfair to
> the copyright holders, and if the extension were a truly
> representative act of a Congress, then the extension might be
> justified. But neither of these conditions applies.

I agree that its not the best public policy, but I lost that debate this year in the Congress. The "justification" for the extension does not depend upon "fairness," but merely by the fact that it was passed by a Congress authorized to pass such a law under Article I, Section 8.

Its important in discussing these issues not to fall into demagoguery, however much I agree with the sentiments of the poster on the ultimate questions he addresses. I believe that it is unreasonable to assert that an act of Congress is not a representative act -- by definition it must be. I concur that the act does not represent my sentiments, but it is most certainly the act of representatives lawfully elected.

Andrew C. Greenberg
<werdna[_at_]gate.net> Received on Mon Oct 19 1998 - 11:56:22 GMT