Mark Lemley <mlemley[_at_]mail.law.berkeley.edu> writes:
>
> (1) My sense is the "copyright is property" folks have a vision of what
> copyright is or should be that is not currently embodied in the law.
> The law grants limited exclusive rights to copyright owners in certain
> circumstances, but not others. If that's what we mean by property,
> great. But what I fear is that having equated copyright with property
> in the minds of the public, these people will then turn around and say
> "wait a minute, copyright is property, but copyright owners don't have
> all of the rights that real property owners do. Let's give them some
> more, in the interest of equity." This would be a bad idea.
Copyright as property is not only valid legally, but it also derives from the common understanding of the word 'property.' Consulting Webster's Third New International and the New Lexicon Webster's Dictionary confirms this.
As to Professor Lemley's remark concerning "all of the rights that real property owners" have, I am not sure to what he is referring. What rights does a real property owner have that a Copyright owner does not?
> (2) The only court cases of which I am aware to consider the question
> of whether copyright is property have concluded it isn't. Notably,
> see Chavez v. Arte Publico Press in the 5th Circuit. [The case is
> currently on en banc review]. So it's a bit facile to say the
> copyrights "are" property already.
There are a host of cases expressly holding that Copyrights are property. I published a bunch of cites in a listserv or news list sometime back when this issue last came up -- I'll try to find them and post it again. Chavez, of course, is not the only game in town in the IP-as-property-per-14th-amendment-after-Seminole-Tribe cases, and counterparts have held otherwise, arguing from the same Article I, Section 8 from which Copyright derives its due. I recall also that there are some Copyright/takings cases, but I don't have the cases before me.
Andrew C. Greenberg
<werdna[_at_]gate.net>
Received on Tue Nov 03 1998 - 13:06:25 GMT
This archive was generated by hypermail 2.2.0 : Mon Mar 26 2007 - 00:35:33 GMT