Re: Abandoning property (Was: Copyright Extension Bill Passes Congress)

On Mon, 9 Nov 1998, Lance Purple <lpurple[_at_]netcom.com> wrote:
>
> In the last week, the Austin American Statesman has published exactly
> three notices of public auction for 112 abandoned vehicles, which may
> be seen at <URL http://www.austinclassifieds.com/misc/publclass.htm>
> This is indeed not a "full page" and I apologize for the hyperbole;
> nevertheless I think it disproves Mr. Roettinger's claim of rarity.

  We have a problem in society with "litter". The "Don't mess with Texas" campaign, with bumper stickers, the jingle on the radio, and TV spots was an attempt to raise awareness and help clean up the roadsides. When someone discards a "spent" automobile, it is litter on the roadside, but with a possible salvage value. But all vehicles on the roadside are not "abandoned", some may be broken down, others may have been stolen. To get the owner's attention, stickers are often placed on the vehicles that say "Abandoned vehicle". These don't make it so, they are designed to get the true owner's attention. They accomplish that task.

  Society, and the law, favor the approach of treating property as if it is "lost" or "stolen", as a legal presumption, and allow the discovery of facts to the contrary to determine that the property is "abandoned". Most restaurants and public places have a "lost and found" collection of umbrellas, scarves, glasses, and other items that are not presumed to be "abandoned". Many of these collections have items that have been there for years.

> I disagree that the owner must actually recieve the notice: if they
> cannot be located (for example, if they have failed to register their
> current address with the Department of Motor Vehicles), then a public
> notice of auction, with the VIN and owner's name clearly indicated,
> should be sufficient.

  In most states, and under the federal system, depriving one of property requires due process, and due process requires notice. Notice is often defined as "actual notice" -- service "in hand" or at last and usual residence (note this is not just mailing out a notice). A person who does not get served has a defense later, which is why many attorneys go to great lengths to serve people "in hand".

  This is "constructive notice", the next best thing under the law to actual notice. It is far better than just mailing a notice. It requires sufficient time to respond. In reality, it is not very effective (not many people read these "legal notices").

> (Perhaps the WIPO ought to maintain a similar registry to help locate
> the owners of intellectual work rights?)

  That is a good idea. But I would propose that if one never assumed property to be abandoned (different from public domain), and sought permission or a license, then there would be no problem. The notion that intellectual property should be somehow free for the taking is what offends me about some of the other comments on this thread.

  There is a huge amount of information available on property that is "found". The inherent value is often easily ascertainable. A wallet with $2,000 cash in it is probably "lost" and not abandoned. A 1999 automobile with the VIN number removed is probably not abandoned. A 1982 chevy with no paint and a shot motor, left on the side of the road with no VIN and no plate is probably abandoned. You can impute some motive to the true owner from the circumstances.

  Some cars get abandoned at the airport parking lot, I suggest. I am sure you would be quite upset if you returned from a trip, went to where your car was parked, and found a note saying that the City of Austin determined that you had abandoned your car, and they had auctioned it off (after all, you didn't answer the phone, and you did not reply to their letter). This is the appropriate analogy to apply when "taking" a work that is not actively in print, I propose.

  An out of print book is an entirely different matter. Unless we ask the owner of the copyright, we have no idea why the book is out of print, nor can we even be sure that it IS out of print. The mere fact that we think the book is out of print is not a reliable indicia of anything related to the circumstances around how the book came to be "out of print" (if in fact it is out of print).

> Moreover, the motive is almost always the former owner's unwillingness
> to pay for having the vehicle repaired or towed away to the junkyard.
> Similarly, the motive for leaving copyrighted works out-of-print is
> that they are no longer worth the expense of a print run.

  I disagree that this is an appropriate analogy. I know of no fees that an author has had to pay to haul their manuscripts to the dump. There is no affirmative burden on society, and no hazard. With an abandoned auto, there is a hazard (toxic materials and a gasoline tank that can explode), and a cost to deal with that hazard.

> Which goes back to my original analogy: if copyrights are going to be
> considered property like unto motor vehicles, then the owner and heirs
> shouldn't be allowed to leave them broken-down by the side of the road
> for 90+ years.

  I understand your analogy. I would not argue it to a jury.

  This is not legal advice, if you encounter a legal problem, you should discuss it with an attorney licensed to practice law in your jurisdiction.

-- 
Thomas E. Workman Jr.

EMAIL: tworkman[_at_]erols.com
Phone: (508) 822-7777
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