Re: Copyright Extension Bill Passes Congress

On Thu, 22 Oct 1998, Timothy Phillips <hrothgar[_at_]telepath.com> wrote:
>
> Andrew Greenberg <werdna[_at_]gate.net> wrote:
> >
> > 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.
>
> Once again, one of my critics fails to note the distinction between
> a work and its copyright. My thesis is that the copyrighted WORKS
> either are not property at all, or they are PUBLIC property. That the
> COPYRIGHTS are property does not mean that the WORKS are property.
> Even if the works themselves are property, the owner of the copyright
> is not necessarily the owner of the work. Once again the analogy of
> the mortgage is useful: the mortgage company owns the mortgage to your
> house, but you own your house.

After rereading his posting, I am still not sure he didn't make arguments based upon the properties of a Copyright, rather than the properties of a work of authorship, however, and hope I can be forgiven for my misunderstanding. (Indeed, he makes such arguments in this posting as well.)

I did not note this distinction, or that Tim had made the distinction. I have no position on the property nature of a work of authorship, per se, apart from the Copyright interest granted in and to the work. I presume that he agrees that a Copyright is, in fact, property.

There was a thread in misc.int-property on or about February of this year on this same subject. There, dictionaries ranging from Black's Law dictionary to Webster's Third New International were cited, all of which included copyright per se (as opposed to the work itself) in the definition of "property." Further, Supreme Court and Circuit court authorities were cited expressly stating that Copyrights are personal property. Of course, the tax code in several places defines personal property in such manner as to include the copyright.

Additionally, the recent 11th Amendment IP cases, in which the status of a Copyright as PROPERTY have been held to permit Congress the right to create a cause of action against the States under Section 5 of the Fourteenth Amendment. Were it not property, these cases would be spitting in the wind. Indeed, in some of them, Lanham Act unfair competition causes were distinguished from Copyright and Patents (and presumably trademark actions).

> That copyright EXPIRATION differs from alienation of a chattel
> follows from common sense. A chattel must exist in order to be
> alienated. An expired copyright no longer exists.

Not true. While it was historically the case that Copyrights fell into the public domain permanently, Copyrights, at least recently, have been able to rise like a phoenix in some cases. What is the status of the ownership interest during the "dormant" period? For example, if I assigned all right, title and interest in and to a work during a period after the copyright had expired, and the interest is re-upped, who is the owner of the "new" copyright? Was there a property interest in those works during its "near-death" experience.

[These metaphysical questions are, IMHO, the strongest reasons for not permitting works to be recaptured from the public domain, and show the wisdom of Congress' recognizing that Copyright in and to a work of authorship vests upon fixation.]

There is no doubt that the nature of the property interest in a copyright is different in some respects from the property interest in, say, a puppy, stock or a bank account. Each has distinguishing properties. However, the fact that there are differences does not make one more or less "property" than the other.

[Quote from Dowling]

> Note again that it is the COPYRIGHT, not the copyrighted WORK, that is
> described as property, and even so it is distinguished from tangible
> property.

My point precisely. Copyrights are intangible personal property assets.

Copyrights, like most other forms of property, provide exclusive rights to exclude that can be bought, sold, devised to one's heirs and cannot be taken by the government without just compensation. I agree that it is different from a house or the land on which a house is placed, as are most forms of personal property. I agree that it is different from a car or a puppy, as are most forms of intangible property. I even agree that it is different from stocks, bonds and bank accounts. So what? It is not different in the sense of BEING property -- at least not according to the dictionaries, the courts and common sense.

> > The poster's analogy is not the best.
>
> I note that my analogy caught Mr. Greenberg's interest enough for him
> to respond to it.
>
> Some of Mr. Greenberg's cross-examples may very well approximate some
> aspects copyright more closely than the mortgage analogy does. But one
> use of an analogy is to illustrate aspects of the less familiar in terms
> of the more familiar. I stand by the usefulness of the mortgage analogy
> for illustrating some aspects of copyright in terms of what is likely to
> be familiar to many. Equally I stand by the usefulness of the "20 more
> years of house payments -- pay up!" analogy for illustrating the
> unfairness of copyright extension on pre-1978 works.

It is one thing to say that Extension of a copyright seems unfair. It is another thing entirely to state that Copyrights are not property. As to the former, it is a normative decision on which I stand firmly on the fence. As to the latter, there is virtually no substantive argument to the contrary.

As to Tim's distinction, I'm not really sure what is his point. A Mortgage is an interest in an estate in land, distinct from the underlying property interest in the real estate, which is distinct from the parcel of land itself. Is the latter diferent from the others? Is the land itself "not property," because absent government recognition of the exclusive right to expel others from the land, and may take it (with just compensation) and give it to the public if it so chooses? So what of Tim's distinction? I suppose I don't understand his point, and invite him to clarify.

Andrew C. Greenberg
<werdna[_at_]gate.net> Received on Mon Oct 26 1998 - 13:14:15 GMT