Re: Copyright Extension Bill Passes Congress

On 10/26/98, Andrew C. Greenberg <werdna[_at_]gate.net> wrote:
>
> 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.

I admit to not following this thread very closely, so I apologize in advance if the following issues were addressed in an earlier posting.

Mr. Phillips thesis is that "copyrighted WORKS either are not property at all, or they are PUBLIC property." Is this to say that if a genius sculptor creates a statue that is universally recognized as a masterpiece, and the sculptor sells the statue to a wealthy individual for, lets say, $2,000,000 (but retains the copyright in the statue), then the purchaser has spent $2,000,000 on an item that may not be protectable/transferrable as property? What, then, is the individual's interest in the statue? If the statue appreciates in value, and the individual sells it, are there tax implications for the gain on the sale of an item that is not property? If the statue is public property, then has the individual spent $2,000,000 to effectively become a trustee (with all appurtenant fiduciary duties) who holds the statue for the benefit of the public? If so, what happens to the individual if the statue becomes damaged? Can the public then sue the individual for damages to the item which he paid $2,000,000 to acquire? Similarly, what are the tax consequences to the individual who sells "public property" if it has appreciated in value. Does the individual even have the authority to sell public property without permission from the appropriate governmental authority.

What about these issues in a less dramatic example:

I go the local bookstore to buy a copy of Stephen King's latest book. Clearly, Mr. King's books are all currently protected by copyright (the question of who owns that copyright is not pertinent to this discussion). I plunk down my $5 and walk out with a paperback book, which is a copyrighted WORK. Don't I own that book as an item of personal property? If not, what ownership interest do I have as a result of my purchase? Can any member of the public come and take it from me, claiming that the work is public property which should be accessible to all? How is that book treated by my estate when I die? Does the book escheat to the state as public property? Do my heirs and beneficiaries have the right to items that are not property?

Some of these questions might be answered with a few minutes of research which I admit to not having done when writing this post. I suppose it is possible that the answers to the questions raised above cannot be presented succinctly in an email discussion list, but must be learned by reading Mr. Phillips' undoubtedly lengthy thesis. Nevertheless, I am interested in learning how Mr. Phillips addressed such issues, and I invite him to respond to the above scenarios.

Benedict A. Monachino
Peabody & Arnold LLP
Boston, MA
<bam[_at_]p-a.com> Received on Wed Oct 28 1998 - 12:54:25 GMT