Re: Copyright Extension Bill Passes Congress

Mark Lemley (whose posts I always enjoy reading, even when I don't agree) wrote:

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I haven't yet studied Chavez v. Arte Publico. But I have always understood it to be fairly settled law that a copyright (as distinct from the copyrighted WORK) was for many legal purposes treated as if it were a piece of personal property. The Supreme Court did say, in Dowling, that it was "no ordinary chattel", so my terse "they [copyrights] are [property]", to be more exact, should have read "they are, with qualifications." But the current debate is not over whether copyrights are property, but over whether the copyrighted WORKS, once they have been communicated to the public, are--or should be--considered to be the author's private property, and if so, what implications that identifcation would have for the term of copyright. I continue to hold that anyone who starts an analysis of copyright law with the "copyright is (or should be) to work exactly as private fee-simple land-title is to land" notion will create an expansion which converges to an incorrect result. The best--or least bad--analogic language with which to begin analysis of copyright law's treatment, both as it is and as it should be, of the public's relationship to a work of authorship, is the language of public goods and public grant of monopoly. For the public's relationship to the author, the language of exchange provides the most useful, or least misleading, analogies. Analogies likening works of authorship to private real property, or improvements on private property, are less accurate, at least as starting points. Analogies likening copyrighted works to private chattels are even worse. Hence the "ghoti" author's statement of 9 October 1998 that the copyright extension "is a victory for and a boon to American writers and artists, and other createive Americans, who should have learned in the sandbox that you may not use what isn't yours without asking" is far off the mark. If we are to use such an analogy as Ms. Stoller's at all, copyright represents a situation in which Jimmy's and Johnny's parents agree that, for a time, only Johnny will have a yellow Tonka bulldozer. Copyright infringement would be analogous to a situation in which Jimmy's parents buy Jimmy a yellow Tonka bulldozer in violation of the agreement. Copyright expiration represents the expiration of the agreed term. The question remains: should such an agreement be made at all, and if so for how long? It simply does not follow, as Ms. Stoller would have it, that longer terms are better.

Tim Phillips
<hrothgar[_at_]telepath.com> Received on Tue Nov 03 1998 - 15:50:23 GMT