Re: Copyright Extension Bill Passes Congress

On Fri, 30 Oct 1998, Joseph P. Riolo <riolo[_at_]voicenet.com> wrote:
>
> I believe that you are not on this list (CNI-COPYRIGHT) long enough
> to be familiar with Albert Henderson's position, which for some is
> seen as high protectionist. Two of some points that illustrate his
> position is 1) the fair use should be eliminated and 2) Xerox copiers
> are "evil" (he did not say the word "evil" but one can get such
> impression from his posts).

True. However, as I have not adopted this position, I'd be obliged if responses were directed to MY arguments rather than these straw men.

> When I have a book whose work has entered the public domain (which
> therefore is not covered by the copyright law), on what basis can
> or cannot I copy the book?

That would depend, of course, upon the circumstances the work entered into the public domain, the circumstances under which he obtained the book and the circumstances under which the copying has taken place. Trade secret and trademark law can govern certain uses or disclosures of the work. Further, the law of defamation, privacy and the right to publicity can limit what one may do with the work. According to Zeidenberg, there may also be contractual limitations under certain circumstances.

> Here you have two different sides to the question: On one hand,
> there are people who believe that you cannot copy the public domain
> work without permission regardless of the expiration of copyright
> in the work. In other words, all works have perpetual copyright.
> They use the concept of natural right to justify the perpetual
> copyright.

It is one thing to say that there is a natural right to a copyright in and to a work, an issue rejected by the Supreme Court. I do not hold that position either. Mr. Riolo asserted that there is a natural right (he called it a freedom) to copy, and that it is was improper to consider extending the Copyright Act protections without recognizing that right (or freedom). I simply asked him for his authority for that position.

> On the opposite side of the spectrum, there are people who believe
> that you can copy the public domain work. What reasons do they
> have to justify the copying? Why do I believe that I can copy
> the public domain work? It is not because it is not covered by
> the copyright. It is because I have the freedom to copy.

This justification, so far as he has stated it, is merely tautological. Non-application of the Copyright Act most certainly limits what a Copyright owner may do as against third parties with respect to the enumerated exclusive rights. If that is Mr. Riolo's definition of a freedom to copy, that's fine. However, he goes further...

> The freedom to copy is not "an incident of the uncovered portions
> of the Copyright Act". The freedom to copy always exists, from the
> dawn of the world to the eternity. Copyright law was created to
> diminish or restrict the freedom to copy.

As I said, where's the Beef? What is his authority for this proposition? What is the scope of this "freedom" elevated into a right? [By the way, there is some authority for rights to copy as incidents of no protection under the act in the first section of the Restatement (Third) of Unfair Competition. It will do little to bolster Riolo's remarkable creation, however.]

> Whether the freedom to copy can be recognized as a right is up
> to a government. If the government does not recognize the freedom
> as a right, fine. If the government recognizes the freedom as
> a right, fine. Either way, the freedom to copy always exists
> regardless of what the governments say.

And thus, my next statement:

> > There is no impropriety here. The fact that under certain
> > cicumstances you may enter my property for various reasons does
> > not mean that in a discussion of my property rights to exclude
> > I must take account of your "freedom to move on my land."

is fine.

> This is not a good analogy. A work (the metaphysical thing) which is
> duplicable is not the same as the land (the concrete thing) which is
> not duplicable.

Why is this distinction relevant? By entering the land, say to sleep for the evening, when Mr. Riolo is not using it (or a portion of it) does not affect the thing -- it only affects Mr. Riolo's right to exclude, or perhaps to collect rent in a squatter-free neighborhood, assets as intangible as my rights to this posting under Section 106.

> > And, quite frankly, modern impingement on the Riolo "freedoms to copy"
> > certainly hasn't measurably diminished either the volume or quality of
> > works of authorship or scholarship of all kinds in any sense that I
> > can measure. I believe a strong argument can be made for the opposite
> > position.
>
> I agree with your statements only for bringing the works out to the
> public. After that, copyright harms most of them by not letting
> people to preserve and propagate the less known works.

What we have here is a person who thinks he has some "natural right" that should be, but is not recognized by the government. That's fine, and I might even agree with him to a limited extent, but this doesn't make it improper not to consider his inchoate, non-recognized rights, and hence I'll stand by my original response to his message.

Andrew C. Greenberg
<werdna[_at_]gate.net> Received on Sun Nov 01 1998 - 15:30:26 GMT