Phonograms were originally considered merely an alternate form of musical notation, such as a MIDI sequence could be thought of today. This was because the first phonograms were piano rolls, which indeed were little other than an alternative form of notation. Hence the 1909 Copyright Act did not consider them copyrightable separately from the underlying music. Recording technology quickly made this view obsolete, but it took decades for the law to catch up. This is why there is no public performance right in most sound recordings.
Creating a public performance right in all sound recordings would make the statute more consistent. But we shouldn't let the robber barons get something for nothing. The new right would be an expansion in the scope of copyright. The quid-pro-quo should be a contraction in copyright's scope elsewhere (such as an expanded margin of fair use) or a reduction in the duration of copyright, from life-plus-70 down to life-plus-60 or life-plus-50.
Copyright will continue to extend for as long as that damn mouse makes money.
We (call us the "men of '98") who opposed the CTEA back in the day predicted that the special interests would be back in Congress in about 2015 asking for another extension. Their school of thought already launched a trial balloon in the form of writer Mark Helprin's call, last year, for Congress to extend copyright again "as far as it can throw."
The best thing that those who love the public domain can do right now is to prepare. Inform ourselves. Have discussions like this one. Those who live in the EU can work against the proposed extension in the "neighboring rights" applying to phonograms. If you do, you will be fighting for us here in the USA as well as for yourselves. When 2015 arrives and the new extension is proposed, if we are ready, we will be able to put up a stiffer resistance than last time.
And of course, maybe they won't propose another extension after all, and Mickey Mouse will finally become publici juris. Maybe some brave member of Congress will even propose a reduction in the term of copyright. If the White Queen can believe six impossible things before breakfast, then surely we can imagine one or two.
The London Daily Telegraph: High clearance fees inhibit the work of art historians.(John Whitley, "Protection - or racket? How they're keeping art out of sight--Art historians and biographers are going to the wall as the high-finance stranglehold on copyright tightens.", The Telegraph, "11/09/1999" -- I think in a UK context that means September 11th, not November 9th.)
The Irish Times: The James Joyce estate prevents the performance of a song. (Medb Ruane, "The war of words over Joyce's literary legacy" Irish Times, June 10, 2000.)
The Irish Times: As a result of Joyce estate threats, Cork University Press decides that it must excise Joyce's works from a "comprehensive" anthology of 20th century Irish literature. (Terence Killeen, "Copyright row over Joyce excerpts", Irish Times, February 19th, 2001.)
The Irish Times: The Samuel Beckett estate suppresses a 1988 French production of Endgame and a 1994 London production of Footfalls. These incidents are mentions in the article's next-to-last and 4th-to-last paragraphs.(Louise East, "All Beckett's plays to be filmed here for millennium", Irish Times, July 17th, 1999.)
The Guardian: Peter Schaufuss rewrites a ballet under pressure from the Elvis Presley estate.(Jann Parry, "Thin Elvis--Copyright problems have made rock'n'roll spectacular The King a pale shadow of its subject", April 30th, 2000.). Richard Morrison of The London Times comments on the same incident here. (Richard Morrison, "Why Elvis will never leave the auditorium", London Times, April 20th, 2000.)
The Shawnee (Oklahoma) News-Star: The Martha Graham Trust suppresses the production of Graham's Panorama at a Frostburg State University summer workshop. ("Officials try to shield school from fight over dancer's, legacy", Shawnee (Oklahoma) News-Star. The web page's graphics give a date of May 2, 2000, but the story's correct date is July 18th, 2000, as can be verified by examining the page's html source.) The New York Times article (free registration might be needed) is here. (Doreen Carvajal, "Symposium's Vision Fades in Fight Over Martha Graham's Legacy", New York Times, July 17th, 2000)
Animerica Magazine: Special Sailor Moon issue delayed due to rights clearance complications.(Julie Davis, "Sailor Moon Blues", Animerica Magazine, Volume 9, Number 5.)
Even Lessig doesn't always make this point as strongly as he might: The purpose of copyright and patent laws under the U.S. constitution it to enlarge the public domain. That's it. Nothing else.
It's true the words "public domain" (an analogy to the law governing public lands) weren't part of the terminology at first. But the concept, that all those intangible works of the human mind, customarily called writings and inventions, that are voluntarily communicated to mankind belong by right to all mankind, has always been part of the constitutional system devised for such intangible works. (Note that only intangibles are specified. The principle says nothing whatever about the proper policy to be taken toward any tangible item--not even toward tangible items incorporating works of the mind. Nor does the principle even apply to all intangibles. Only to those intangible works of the human mind that are conventionally designated "writings" and "inventions" and that are voluntarily set before the public.) According to Thomas Jefferson, the purpose of patent law is to "enlarge our conveniences". (Letter to Oliver Evans, January 16th, 1814). According to Benjamin Franklin, "as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours; and this we should do freely and generously." (Autobiography.) According to the U.S. Supreme Court:
The aim of the patent laws is not only that members of the public shall be free to manufacture the product or employ the process disclosed by the expired patent, but also that the consuming public at large shall receive the benefits of the unrestricted exploitation, by others, of its disclosures....The public has invested in such free use by the grant of a monopoly to the patentee for a limited time.
--Scott Paper Co. v. Marcalus Mfg. Co., Inc., 67 USPQ 193, at 196 (Stone, J.) (Emphasis added.) The same applies, mutatis mutandis, to copyright.
Of course, thanks to patent and copyright law, authors and inventors don't need to contribute to the public domain gladly, freely, and generously, as Franklin wishes they would. These laws enhance the odds that they can get a return from their investment. They get a better chance than they otherwise would have to be paid a reasonable price for their contribution. The theory is that this will make the writing and inventing trades more profitable, on the average, than they would otherwise be, so that more writings and inventions will be added to the public domain. Society is not obliged to do this; nevertheless it has generously done so. But at least in the case of copyright law, the public's generosity in setting up this system has not been received with thanks. Instead, we have been burdened by demands for ever-greater monopoly privileges.
Renewal copyrights in published works expired from January 1st, 1983 (works published in 1907) to January 1st, 1998 (works published in 1922). Renewal copyright on works that were published in 1905 and had their copyrights renewed expired not later than January 1st, 1962. I'm not sure about works from 1906. So there was a long stretch from some time in 1962 until January 1st, 1982 (or 1983) when no renewal copyright in a published work expired. Unrenewed copyrights continued to expire during this period as before.
Now that the renewal requirement has been abolished, no published work (except for government works) will enter the public domain until January 1st, 2019. The right of first publication in unpublished works will expire beginning on January 1st, 2003, and these rights will expire yearly thereafter for unpublished works of authors who have been dead for more than 70 years.
It's important to distinguish the copyright from the book, and the patent from the invention. I have no problem with the copyright being a piece of personal property (though in fact not all aspects of the law are consistent with this.) But the copyrighted work itself is an intangible. It is not anyone's "property" unless it is the public's.
Law professor Julie Cohen has made the analogy of copyright to what is called a "contingent remainder". On this analogy (if I understand her reasoning correctly) the rightsholder is a "tenant" in the work, but it is the public that "owns" the work itself, and it is to the public that the work reverts fully once the tenancy has expired. This analogy is tucked away in a footnote in her paper "Lochner in Cyberspace".
Vaidhyanathan writes: At its birth in England, copyright was an instrument of censorship...In contrast, the American copyright system since 1791 has reflected American republican values.
The statements are correct, but the use of the phrase "in contrast" is misleading. In England, the Star Chamber (which had assisted the enforcement of the Stationers' monopoly) was abolished in the mid-17th century. The licensing acts, which were the legal basis for the Stationers' monopoly, expired in 1694 and were never renewed. The "Act for the Encouragement of Learning", passed in the 8th year of Queen Anne (1709-1710), reformed English copyright on the basis of the same enlightenment values that are incorporated in the U.S. Constitution's monpolies clause. So the beginnings of U.S. copyright may indeed be contrasted with the beginnings of English copyright, but by the time the U.S. constitution was adopted, English copyright had come far from its beginnings. The U.S. Constitution's monopolies clause owed a great debt to the English experience.
Vaidhyanathan writes: Copyright was created as a policy that balanced the interests of authors, publishers, and readers. It was not intended to be a restrictive property right.
This is slightly misleading, since it doesn't make clear the difference between means and ends. The means of copyright are limited monopoly privileges, and these privileges are sometimes reasonably thought of as balancing various interests. The end, or goal, of copyright, is to enlarge the public domain. There is no need for "balance"; the public interest in having an expanding public domain is paramount. The means of copyright might balance interests, but they must always be consistent with the ultimate goal of enlarging the public domain.
Vaidhyanathan writes: James Madison, who introduced the copyright and patent clause to the Constitution, argued in The Federalist papers that copyright was one of those few acts of government in which the "public good fully coincides with the claims of individuals."
Madison's remarks in The Federalist Number 43 are actually misleading, and don't accurately refelect his thinking on matters of copyright and patent. His essay (never published in his lifetime) entitled "Monopolies. Perpetuities. Corporations. Ecclesiastical Endowments" is a better source for his ideas on these matters.
Vaidhyanathan writes: Madison did not engage in "property talk" about copyright.
Actually, he did. In the above-mentioned essay on monopolies, he likened books and inventions to public property. Madison wrote:
"Monopolies, though in certain cases useful, ought to be granted with caution, and guarded with strictness against abuse. The Constitution of the United States has limited them to two cases--the authors of books, and of useful inventions, in both which they are considered as a compensation for a benefit actually gained to the community as a purchase of property which the owner might otherwise withhold from public use. There can be no just objection to a temporary monopoly in these cases; but it ought to be temporary because under that limitation a sufficient recompense and encouragement may be given."
Madison is likening a book or invention to a piece of land that the public buys from its holder. The copyright is likened to the payment made in exchange for the land. Hence on this analogy, after the copyright or patent is granted, the inventor or author "owns" the monopoly (for as long as it lasts) but the public "owns" the book or invention.
It's true, though, that Madison didn't confine himself to the limits of this public land analogy. His starting point, as Vaidhyanatham shows by citing Madison's correspondence with Jefferson, was that copyrights and patents are monopolies which might be useful, but must be carefully regulated.
Vaidhyanathan writes: Jefferson proposed specific language for an amendment that would have allowed copyrights and patents, despite his doubts, but forbidden any other type of commercial monopoly.
Jefferson's chief fear hear seems to have been abuses of the commerce clause, not the copyright and patent power. But as Vaidhyanathan points out, and as the wording of Jefferson's proposal clearly shows, Jefferson was also well aware (more so than Madison was in 1789) of the dangers of abuses of copyright and patent.
Jefferson's own proposal for the term of copyright and patent was sent to Jefferson a few days later after the above-cited letter. He proposed 19 years, the half-life of an adult generation in his time. (It took him two tries to work this out, and as a result there are two different versions of this letter in his published works, one without the 19 year proposal, and one with it.) Possibly he would have allowed a renewal for an additional 19 years if the author had been living after the original 19 years, but the phrase "their own productions in literature" suggests that he would not have approved of posthumous renewal.
Vaidhyanathan writes: Significantly, the founders did not argue for copyrights or patents as "property."
This is an important point. The phrase "intellectual property" was not yet in existence, but the phrase "literary property" was known. Some readings of the famous case of Donaldson v. Becket, decided by the English House of Lords in 1774, view it as a rejection of the entire notion of "literary property". To what extent copyright law should incorporate property principles was not agreed on all hands. Adam Smith classified copyrights and patents as "exclusive privileges" (not property rights). Mr. Justice Yates, the dissenting judge in the famous case of Millar v. Taylor (King's Bench 1769), classified copyright as a tort right, not a property right. The framers' choice of the words "the exclusive right" in the Constitution's monopolies clause shows that they were aware that the status of copyright and patent rights as "property" was not a matter of fundamental right, but of policy. By specifying "the exclusive right" they gave Congress freedom to incorporate, or not incorporate, property principles in U.S. copyright law as it saw fit. By specifying "limited times", the framers made it clear that property principles could be imported into copyright and patent law only to a limited extent.
Vaidhyanathan writes: Jefferson wrote of copyright, "Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me."
Jefferson was writing about patent law, not copyright law, in his 1813 letter to Isaac McPherson.
Vaidhyanathan writes: Fearing, justifiably, that copyright might eventually expand to encompass idea protection, not just expression protection, Jefferson wrote in 1813, "If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispose himself of it."
Jefferson's use of "idea" in this 1813 letter is not a reference to what is now called the "idea/expression dichotomy" of copyright law. This distinction was known at the time (though 18th century authors used other words for it). But Jefferson here was writing in a patent-law context. If he means "ideas" as distinguished form "exression" (as we now style it), still he was referring to what lawyers call "the subject matter of patent". And patents, unlike copyrights, protect "ideas". If we map his patent-law comments into a copyright context, then we must substitute "expression" where Jefferson uses "idea".
But Jefferson, though writing in a patent-law context, was writing at a high level of generality. By "idea" Jefferson was referring to any work of the human mind, not to "ideas" as distinguished from "expressions". The same applies to Mr. Justice Brandeis's statement that "the general rule of law is, that noblest of human productions--knowledge, truths ascertained, conceptions and ideas -- become, after voluntary communication to others, free as the air to common use." By "knowledge, truths ascertained, conceptions and ideas" Brandeis meant "all works of the human mind", not simply "ideas" as distinguished from "expression".
Nevertheless, ideas and expression are not completely separable. Copyright that is too broad in scope or too long in duration eventually inhibits freedom of "ideas", even "ideas" as distinguised from "expression."
Vaidhyanathan writes: Jefferson might not have been happy with the recent trajectory of the law. But he would have gotten a kick out of Napster.
In Jefferson's time, copyright only applied to printed books as published. Public performance and display, and creation of derivations, were public rights.
On the other hand even under a Jeffersonian copyright term of 19 years, or a neo-Jeffersonian term of 30 years (arrived at by applying Jefferson's formula to modern conditions), many of the works swapped over Napster would be under copyright. So even if we scaled back the scope and duration of copyright to reasonable levels, there might still be a compliance-problem involving Napster. If we are going to view copyright as a bargain between the public and the monopolist, the public must hold up its end of the bargain in good faith. And that might mean refraining from file-swapping in some circumstances. I agree with Mr. Vaidhyanathan, though, that the chief problem in copyright today is not infringement by private citizens, but the overreaching greed of the rightsholders.
The following is adapted from a brief piece that appeared elsewhere on the web last year. Both the adaptation and its appearance here are by permission of the original author.
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Any attempt to sever the notions of "public interest" or "progress of science" from the public domain in expression is an obscene mutilation of the U.S. copyright tradition. According to the framers and the Supreme Court, the only reason the copyright monopoly is to be endured even for a limited time is because the public domain will be larger afterward than otherwise.
In the context of patent law, the Supreme Court early identified the public interest with what is now called the public domain:
There is much reason for [the requirement of novelty] thus imposed by the act. While one great object was, by holding out a reasonable reward to inventors and giving them an exclusive right to their inventions for a limited period, to stimulate the efforts of genius; the main object was "to promote the progress of science and useful arts;" and this could be done best, by giving the public at large a right to make, construct, use, and vend the thing invented, at as early a period as possible; having a due regard to the rights of the inventor. If an inventor should be permitted to hold back from the knowledge of the public the secrets of his invention; if he should for a long period of years retain the monopoly, and make, and sell his invention publicly, and thus gather the whole profits of it, relying on his superior skill and knowledge of the structure; and then, and then only, when the danger of competition should force him to secure the exclusive right, he should be allowed to take out a patent, and thus exclude the public from any farthur use than what should be derived under it during his fourteen years; it would materially retard the progress of science and the useful arts, and give a premium to those who should be least prompt to communitcate their discoveries.
--Pennock and Sellers v. Dialogue, 27 U.S. 11 (1829), at 18, (Story, J.)
Mr. Justice Story means, in this particular case, that (under the law at the time) an inventor who used his invention in commerce could not rely on the invention's trade-secret status to extend his monopoly, taking out a patent only when a competitor was close to reverse-engineering his discovery. An invention in public use must be either protected by patent or in the public domain. His underlying point, however, relies on the Constitution: that the public interest is in placing the monopolized item in the public domain "at as early a period as possible". "Due regard" for the rights of the inventor does not mean allowing him as long a monopoly as he can contrive to get.
Some more recent Supreme Court cases have been equally explicit in equating the public interest with the public domain. Foremost among these is Sony v. Universal City Studios:
The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.
--Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, at 429 (Stevens, J.)
Note that the monopolies have two purposes: (1) "to motivate" authors and inventors; and (2) "to allow the public... access... after the limited period of exclusive control has expired." (Emphasis added). In other words, the purposes of the monopolies are: (1) to encourage authors to (2) enlarge the public domain. Furthermore, purpose (2) must always have precedence over purpose (1). If a monopoly is "primarily designed to provide a special private benefit", then Congress may not authorize it.
The court elaborated on purpose (2) in the patent-law case of Scott Paper v. Marcalus:
The
aim of the patent laws is not only that members of the public shall be free to manufacture the product or employ the process disclosed by the expired patent, but also that the consuming public at large shall receive the benefits of the unrestrictedexploitation, by others, of its disclosures....The public has invested in such free use by the grant of a monopoly to the patentee for a limited time.
--Scott Paper Co. v. Marcalus Mfg. Co., Inc., 67 USPQ 193, at 196 (Stone, J.) (Emphasis added.)
It is important to realize that the phrase "public domain" came fairly late into the Supreme Court's copyright-related language. But the continuity of thought from Pennock v. Dialogue to Sony shows that when the Court spoke of "public interest", "public benefit", and "public good" it meant implicitly to include what we now call the public domain. Supreme Court opinions must be read in the light of the teachings of such cases as Pennock v. Dialogue and Sony , even when the words "public domain" or "publici juris" do not occur.
For example, the following statement makes no explicit reference to the public domain or to the expiration of copyright or patent:
The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors. A copyright, like a patent, is "at once the equivalent given by the public for benefits bestowed by the genius and meditations and skill of individuals and the incentive to further efforts for the same important objects".
--Fox Film Corp. v. Doyal 286 U.S. 123 (1931), at 127 (Hughes, C.J., citing Kendall v. Winsor, 62 U.S. 322, at 328, and Grant v. Raymond, 31 U.S. 218 (1832))
That the "benefits derived by the public" mentioned in this statement are nevertheless inseparable from what is now called the public domain can be seen by examining the cited case of Grant v. Raymond:
The settled purpose of the United States has ever been...to confer on the authors of useful inventions an exclusive right in their inventions for the time mentioned in their patent. It is the reward stipulated for the advantages derived by the public for the exertions of the individual, and is intended as a stimulus to those exertions...The laws which are passed to give effect to this purpose ought...to be construed in the spirit in which they have been made...[If this is done,] the public yields nothing which it has not agreed to yield; it recieves all which it has contracted to receive. The full benefit of the discovery, after its enjoyment by the discoverer for fourteen years, is preserved....The great object and intention of the act is to secure to the public the advanteges to be derived from the discoveries of individuals, and the means it employs are the compensation made to those individuals for the time and labour devoted to these discoveries.
--Joseph Grant and others v. E. and H. Raymond, 31 U.S. 218 (1832), at 241. (Marshall, C.J.)
Here the "full benefit of the discovery" is something which the public "recieves after its enjoyment by the discoverer for fourteen years." (Emphasis added.) In other words, the "full benefit" is the addition of the invention to the public domain.
Consideration of this opinion leads to another observation: In characterising the patent as an agreement or transaction between the inventor and the public, Mr. Chief Justice Marshall's immediate concern in Grant v. Raymond was that the public should act in good faith, and not deprive the patentee of the patent prior to the expiration of the agreed term due to over-insistence on technicalities. But the argument cuts just as well the other way: the monopolist should act in good faith and yield "the full benefit of the discovery" after enjoying it for the agreed time.
The "public benefits" from patents are also implicitly identified with the public domain in Mr. Justice Black's dissent in Williams v. Shoe Machine Corp.:
As I view this patent its total impact is apalling. Out of its great bulk, the respondent is able to assert only three simple improvements embraced in five claims...Yet by its terms the patent as a whole purports to appropriate for exclusive use, not merely these improvements, but a major instrument of production in its entirety. Furthermore, this patent is one of a group which seems to have an interminable caacity for self-perpetuation. If judicial approval is to be given to patents of this kind, the
public benefits which might reasonably be hoped for under the constitutional provisions and the federal statutes relating to patents can never be attained.
--Williams Manufacturing Co. v. United Shoe Machinery Corp., 316 U.S. 364 (1941), at 393, (Black, J., dissenting.) (Emphasis added.)
Abstracting Mr. Justice Black's underlying presuppositions from the immediate context, one finds that the mere availability, under license from the monopolist, of the monopolized item is not identified with the "public benefits which might reasonably be hoped for under the constitutional provisions." Only when the patent expires are these "public benefits" obtained.
In fact, the equivalence of the public domain with the public purpose to be served by patents and copyrights is implicit even in statements which do not use such words as "public interest" or "public benefit". For example:
The process of development in manufactures creates a constant demand for new applicances, which the skill of ordinary head-workment and engineers is generally adequate to devise, and which, indeed, are the natural and proper outgrowth of such development. Each step forward prepares the way for the next, and each is usually taken by spontaneous trials and attempts in a hundred different places. To grant a single party a monopoly of every slight advance made, except where the exercise of invention somewhat above ordinary mechanical or engineering skill is distinctly shown, is unjust in principle and injurious in its consequences.
The design of the patent laws is to reward those who make some substantial discovery or invention, which adds to our knowledge and makes a step in advance in the useful arts. Such inventors are worthy of all favor. It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention.
--Atlantic Works v. Brady, 2 Sup. Ct. Reporter 225 (1883), at 231 (Bradley, J.)
Here the context is the standard of patentability, not the duration of the monopoly. But here as in other cases, the Court's underlying presuppositions have implications for the duration of patents and copyrights. The statement that "each step forward prepares the way for the next, and each is usually taken by spontaneous trials and attempts in a hundred different places" presupposes a rich public domain from which inventors draw. That patents are granted to "substantial" inventions which add to "our" knowledge (not just to the monopolist's knowledge) presupposes that all inventions must return to the public domain from which their inventors drew in inventing them, and that the purpose of the monopoly grants is to encourage inventors to make such "substantial" discoveries in order that the public domain will be enriched.
A site which might interest those who appreciate Mutipia is the Mudcat Cafe.
The Mudcat Discussion Forum contains links to the Digital Tradition, a sort of Project Gutenberg for (mainly) public domain song lyrics. Some of the lyrics are linked to MIDI sequences, and a careful search of the forum archives can turn up many one-line melodies in ABC notation.
Professor Heald's article, linked by an anonymous contributor, is a good addition to this discussion. Professor Heald argues that the simpler sorts of musical editing (such as changing cleffs and adding slurs) should not qualify for copyright.
In the other article noted by the anonymous contributor Professor Heald proposes a number of legal actions that might be taken against those who claim payment for a bogus copyright. He seems to consider false advertising charges to be fairly promising, but I've never heard of this approach being used in the way Professor Heald proposes.
I thought judge Kaplan handled the Bridgeman v. Corel case very well. But now he hands down this judgement which grants to the DVDCCA, outside the safeguards of the patent act, patent-like protection for DVD players incorporating the CSS. This is clearly unconstitutional, yet he doesn't seem to have noticed it--unless it is one of the "concerns of the amici" that his skips over with a few words.
I agree with the contributor who noted that 18th century notions of copyright are more important now than ever. In particular we need to recover the notion, expressed by Adam Smith, James Madison, Thomas Jefferson, and Benjamin Franklin, that copyrights and patents are monopolies in derogation of the public right, and are to be tolerated only to the extent that they encourage the growth of what we now call the public domain.
Some of this history is discussed in the articles posted here.
Of course the constitution needs to evolve. The question is whether any particular development is consistent with its fundamental principles. Since I identify the public domain as the fundamental principle of copyright, I consider the acts of 1998 (DMCA, CTEA) to be largely inconsistent with copyright's deep values.
Of course you have to draw the distinction between an idea and an implementation of an idea. For example, Z-buffering and BSPing are ideas. The source code for Quake-3 Arena is not an "idea" in the traditional sense.
Jefferson's use of the word "idea" in his letter to Isaac McPherson is not intended to refer the technical terminology of modern copyright law, in which "ideas" are distinguished from "expression". His context is patent law. By "idea" he means what lawyers call "the subject matter of patent". Transferring his abstract principle into the realm of copyright law causes causes the reference to "ideas" to be mapped into a reference to "expression". It is a mistake for us to try to evade the implications of Jefferson's principle for copyright by hiding behind his use of the word "idea".
This patent has very little to do with as simple a thing as GET and POST. The patent covers a much more complex usage of what can be construed as GET and POST. Read the patent, before going off on it.
My response:
Can you cite to places in the claims and description which lead you to read them narrowly ? On my reading it is a description of a method (such as HTTP + browser!) for providing a uniform local user interface for fetches of diverse sorts of information from diverse remote servers. There is a little more to it than that, since it divides the software tasks among "nine logical components" in a certain way. But it still comes across as pretty broad on a first reading.
This article in the Journal of Intellectual Property Law proposes ways of fighting against payment demands based on spurious copyrights. One of the four suggestions is a false-advertising action which can be brought under the laws of some states. I wonder if the professor's theory (which so far as I know has never been tested on any copyright claims) might be applied in the patent realm as well.
Assuming the worst, that the patent is valid: would every web site that used one of these methods be liable for infringement, or only the makers of the software that was installed at those sites ? I am not a lawyer, but I fear that the web sites themselves would be liable, unless the software manufacturer had licensed the patent in a certain way. Anyone have any thoughts on this ?
[Y]our ideas belong to you, too. And "intellectual property" is property, period.--Edgar Bronfman, Jr., San Jose, California, May 26, 2000. (from the article cited).
Let us unpack this and compare it to authoritative statements from the interpretation of the congressional power to grant copyrights and patents, or of the principles underlying that power:
1. "Your ideas belong to you"
"It would be curious...if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, received instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me."--Thomas Jefferson, Letter to Isaac McPherson, August 13, 1813.
2. "And 'intellectual property' is property, period."
"In copyright property has reached a more abstract expression. The right to exclude is not directed to an object in possession or owned, but it is in vacuo, so to speak. It restrains the spontaneity of men where, but for it, there would be nothing of any kind to hinder their doing as they saw fit. It is a prohibition of conduct remote from the persons or tangibles of the party having the right...It is a right which could not be recognized or endured for more than a limited time." --Oliver Wendell Holmes, White-Smith Music Publishing Co. v. Apollo Co. 209 U.S. 1., 19, (1908).
Slashdot Mirror
Phonograms were originally considered merely an alternate form of musical notation, such as a MIDI sequence could be thought of today. This was because the first phonograms were piano rolls, which indeed were little other than an alternative form of notation. Hence the 1909 Copyright Act did not consider them copyrightable separately from the underlying music. Recording technology quickly made this view obsolete, but it took decades for the law to catch up. This is why there is no public performance right in most sound recordings.
Creating a public performance right in all sound recordings would make the statute more consistent. But we shouldn't let the robber barons get something for nothing. The new right would be an expansion in the scope of copyright. The quid-pro-quo should be a contraction in copyright's scope elsewhere (such as an expanded margin of fair use) or a reduction in the duration of copyright, from life-plus-70 down to life-plus-60 or life-plus-50.
Copyright will continue to extend for as long as that damn mouse makes money.
We (call us the "men of '98") who opposed the CTEA back in the day predicted that the special interests would be back in Congress in about 2015 asking for another extension. Their school of thought already launched a trial balloon in the form of writer Mark Helprin's call, last year, for Congress to extend copyright again "as far as it can throw."
The best thing that those who love the public domain can do right now is to prepare. Inform ourselves. Have discussions like this one. Those who live in the EU can work against the proposed extension in the "neighboring rights" applying to phonograms. If you do, you will be fighting for us here in the USA as well as for yourselves. When 2015 arrives and the new extension is proposed, if we are ready, we will be able to put up a stiffer resistance than last time.
And of course, maybe they won't propose another extension after all, and Mickey Mouse will finally become publici juris. Maybe some brave member of Congress will even propose a reduction in the term of copyright. If the White Queen can believe six impossible things before breakfast, then surely we can imagine one or two.
Press reports of private censorship:
The London Daily Telegraph: High clearance fees inhibit the work of art historians.(John Whitley, "Protection - or racket? How they're keeping art out of sight--Art historians and biographers are going to the wall as the high-finance stranglehold on copyright tightens.", The Telegraph, "11/09/1999" -- I think in a UK context that means September 11th, not November 9th.)
The Irish Times: The James Joyce estate prevents the performance of a song. (Medb Ruane, "The war of words over Joyce's literary legacy" Irish Times, June 10, 2000.)
The Irish Times: As a result of Joyce estate threats, Cork University Press decides that it must excise Joyce's works from a "comprehensive" anthology of 20th century Irish literature. (Terence Killeen, "Copyright row over Joyce excerpts", Irish Times, February 19th, 2001.)
The Irish Times: The Samuel Beckett estate suppresses a 1988 French production of Endgame and a 1994 London production of Footfalls. These incidents are mentions in the article's next-to-last and 4th-to-last paragraphs.(Louise East, "All Beckett's plays to be filmed here for millennium", Irish Times, July 17th, 1999.)
The Guardian: Peter Schaufuss rewrites a ballet under pressure from the Elvis Presley estate.(Jann Parry, "Thin Elvis--Copyright problems have made rock'n'roll spectacular The King a pale shadow of its subject", April 30th, 2000.). Richard Morrison of The London Times comments on the same incident here. (Richard Morrison, "Why Elvis will never leave the auditorium", London Times, April 20th, 2000.)
The Shawnee (Oklahoma) News-Star: The Martha Graham Trust suppresses the production of Graham's Panorama at a Frostburg State University summer workshop. ("Officials try to shield school from fight over dancer's, legacy", Shawnee (Oklahoma) News-Star. The web page's graphics give a date of May 2, 2000, but the story's correct date is July 18th, 2000, as can be verified by examining the page's html source.) The New York Times article (free registration might be needed) is here. (Doreen Carvajal, "Symposium's Vision Fades in Fight Over Martha Graham's Legacy", New York Times, July 17th, 2000)
Animerica Magazine: Special Sailor Moon issue delayed due to rights clearance complications.(Julie Davis, "Sailor Moon Blues", Animerica Magazine, Volume 9, Number 5.)
Even Lessig doesn't always make this point as strongly as he might: The purpose of copyright and patent laws under the U.S. constitution it to enlarge the public domain. That's it. Nothing else.
It's true the words "public domain" (an analogy to the law governing public lands) weren't part of the terminology at first. But the concept, that all those intangible works of the human mind, customarily called writings and inventions, that are voluntarily communicated to mankind belong by right to all mankind, has always been part of the constitutional system devised for such intangible works. (Note that only intangibles are specified. The principle says nothing whatever about the proper policy to be taken toward any tangible item--not even toward tangible items incorporating works of the mind. Nor does the principle even apply to all intangibles. Only to those intangible works of the human mind that are conventionally designated "writings" and "inventions" and that are voluntarily set before the public.) According to Thomas Jefferson, the purpose of patent law is to "enlarge our conveniences". (Letter to Oliver Evans, January 16th, 1814). According to Benjamin Franklin, "as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours; and this we should do freely and generously." (Autobiography.) According to the U.S. Supreme Court:
The aim of the patent laws is not only that members of the public shall be free to manufacture the product or employ the process disclosed by the expired patent, but also that the consuming public at large shall receive the benefits of the unrestricted exploitation, by others, of its disclosures....The public has invested in such free use by the grant of a monopoly to the patentee for a limited time. --Scott Paper Co. v. Marcalus Mfg. Co., Inc., 67 USPQ 193, at 196 (Stone, J.) (Emphasis added.) The same applies, mutatis mutandis, to copyright.
Of course, thanks to patent and copyright law, authors and inventors don't need to contribute to the public domain gladly, freely, and generously, as Franklin wishes they would. These laws enhance the odds that they can get a return from their investment. They get a better chance than they otherwise would have to be paid a reasonable price for their contribution. The theory is that this will make the writing and inventing trades more profitable, on the average, than they would otherwise be, so that more writings and inventions will be added to the public domain. Society is not obliged to do this; nevertheless it has generously done so. But at least in the case of copyright law, the public's generosity in setting up this system has not been received with thanks. Instead, we have been burdened by demands for ever-greater monopoly privileges.
Renewal copyrights in published works expired from January 1st, 1983 (works published in 1907) to January 1st, 1998 (works published in 1922). Renewal copyright on works that were published in 1905 and had their copyrights renewed expired not later than January 1st, 1962. I'm not sure about works from 1906. So there was a long stretch from some time in 1962 until January 1st, 1982 (or 1983) when no renewal copyright in a published work expired. Unrenewed copyrights continued to expire during this period as before.
Now that the renewal requirement has been abolished, no published work (except for government works) will enter the public domain until January 1st, 2019. The right of first publication in unpublished works will expire beginning on January 1st, 2003, and these rights will expire yearly thereafter for unpublished works of authors who have been dead for more than 70 years.
It's important to distinguish the copyright from the book, and the patent from the invention. I have no problem with the copyright being a piece of personal property (though in fact not all aspects of the law are consistent with this.) But the copyrighted work itself is an intangible. It is not anyone's "property" unless it is the public's.
Law professor Julie Cohen has made the analogy of copyright to what is called a "contingent remainder". On this analogy (if I understand her reasoning correctly) the rightsholder is a "tenant" in the work, but it is the public that "owns" the work itself, and it is to the public that the work reverts fully once the tenancy has expired. This analogy is tucked away in a footnote in her paper "Lochner in Cyberspace".
Vaidhyanathan writes: At its birth in England, copyright was an instrument of censorship...In contrast, the American copyright system since 1791 has reflected American republican values.
The statements are correct, but the use of the phrase "in contrast" is misleading. In England, the Star Chamber (which had assisted the enforcement of the Stationers' monopoly) was abolished in the mid-17th century. The licensing acts, which were the legal basis for the Stationers' monopoly, expired in 1694 and were never renewed. The "Act for the Encouragement of Learning", passed in the 8th year of Queen Anne (1709-1710), reformed English copyright on the basis of the same enlightenment values that are incorporated in the U.S. Constitution's monpolies clause. So the beginnings of U.S. copyright may indeed be contrasted with the beginnings of English copyright, but by the time the U.S. constitution was adopted, English copyright had come far from its beginnings. The U.S. Constitution's monopolies clause owed a great debt to the English experience.
Vaidhyanathan writes: Copyright was created as a policy that balanced the interests of authors, publishers, and readers. It was not intended to be a restrictive property right.
This is slightly misleading, since it doesn't make clear the difference between means and ends. The means of copyright are limited monopoly privileges, and these privileges are sometimes reasonably thought of as balancing various interests. The end, or goal, of copyright, is to enlarge the public domain. There is no need for "balance"; the public interest in having an expanding public domain is paramount. The means of copyright might balance interests, but they must always be consistent with the ultimate goal of enlarging the public domain.
Vaidhyanathan writes: James Madison, who introduced the copyright and patent clause to the Constitution, argued in The Federalist papers that copyright was one of those few acts of government in which the "public good fully coincides with the claims of individuals."
Madison's remarks in The Federalist Number 43 are actually misleading, and don't accurately refelect his thinking on matters of copyright and patent. His essay (never published in his lifetime) entitled "Monopolies. Perpetuities. Corporations. Ecclesiastical Endowments" is a better source for his ideas on these matters.
Vaidhyanathan writes: Madison did not engage in "property talk" about copyright.
Actually, he did. In the above-mentioned essay on monopolies, he likened books and inventions to public property. Madison wrote:
"Monopolies, though in certain cases useful, ought to be granted with caution, and guarded with strictness against abuse. The Constitution of the United States has limited them to two cases--the authors of books, and of useful inventions, in both which they are considered as a compensation for a benefit actually gained to the community as a purchase of property which the owner might otherwise withhold from public use. There can be no just objection to a temporary monopoly in these cases; but it ought to be temporary because under that limitation a sufficient recompense and encouragement may be given."
Madison is likening a book or invention to a piece of land that the public buys from its holder. The copyright is likened to the payment made in exchange for the land. Hence on this analogy, after the copyright or patent is granted, the inventor or author "owns" the monopoly (for as long as it lasts) but the public "owns" the book or invention.
It's true, though, that Madison didn't confine himself to the limits of this public land analogy. His starting point, as Vaidhyanatham shows by citing Madison's correspondence with Jefferson, was that copyrights and patents are monopolies which might be useful, but must be carefully regulated.
Vaidhyanathan writes: Jefferson proposed specific language for an amendment that would have allowed copyrights and patents, despite his doubts, but forbidden any other type of commercial monopoly.
Jefferson's chief fear hear seems to have been abuses of the commerce clause, not the copyright and patent power. But as Vaidhyanathan points out, and as the wording of Jefferson's proposal clearly shows, Jefferson was also well aware (more so than Madison was in 1789) of the dangers of abuses of copyright and patent.
Jefferson's own proposal for the term of copyright and patent was sent to Jefferson a few days later after the above-cited letter. He proposed 19 years, the half-life of an adult generation in his time. (It took him two tries to work this out, and as a result there are two different versions of this letter in his published works, one without the 19 year proposal, and one with it.) Possibly he would have allowed a renewal for an additional 19 years if the author had been living after the original 19 years, but the phrase "their own productions in literature" suggests that he would not have approved of posthumous renewal.
Vaidhyanathan writes: Significantly, the founders did not argue for copyrights or patents as "property."
This is an important point. The phrase "intellectual property" was not yet in existence, but the phrase "literary property" was known. Some readings of the famous case of Donaldson v. Becket, decided by the English House of Lords in 1774, view it as a rejection of the entire notion of "literary property". To what extent copyright law should incorporate property principles was not agreed on all hands. Adam Smith classified copyrights and patents as "exclusive privileges" (not property rights). Mr. Justice Yates, the dissenting judge in the famous case of Millar v. Taylor (King's Bench 1769), classified copyright as a tort right, not a property right. The framers' choice of the words "the exclusive right" in the Constitution's monopolies clause shows that they were aware that the status of copyright and patent rights as "property" was not a matter of fundamental right, but of policy. By specifying "the exclusive right" they gave Congress freedom to incorporate, or not incorporate, property principles in U.S. copyright law as it saw fit. By specifying "limited times", the framers made it clear that property principles could be imported into copyright and patent law only to a limited extent.
Vaidhyanathan writes: Jefferson wrote of copyright, "Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me."
Jefferson was writing about patent law, not copyright law, in his 1813 letter to Isaac McPherson.
Vaidhyanathan writes: Fearing, justifiably, that copyright might eventually expand to encompass idea protection, not just expression protection, Jefferson wrote in 1813, "If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispose himself of it."
Jefferson's use of "idea" in this 1813 letter is not a reference to what is now called the "idea/expression dichotomy" of copyright law. This distinction was known at the time (though 18th century authors used other words for it). But Jefferson here was writing in a patent-law context. If he means "ideas" as distinguished form "exression" (as we now style it), still he was referring to what lawyers call "the subject matter of patent". And patents, unlike copyrights, protect "ideas". If we map his patent-law comments into a copyright context, then we must substitute "expression" where Jefferson uses "idea".
But Jefferson, though writing in a patent-law context, was writing at a high level of generality. By "idea" Jefferson was referring to any work of the human mind, not to "ideas" as distinguished from "expressions". The same applies to Mr. Justice Brandeis's statement that "the general rule of law is, that noblest of human productions--knowledge, truths ascertained, conceptions and ideas -- become, after voluntary communication to others, free as the air to common use." By "knowledge, truths ascertained, conceptions and ideas" Brandeis meant "all works of the human mind", not simply "ideas" as distinguished from "expression".
Nevertheless, ideas and expression are not completely separable. Copyright that is too broad in scope or too long in duration eventually inhibits freedom of "ideas", even "ideas" as distinguised from "expression."
Vaidhyanathan writes: Jefferson might not have been happy with the recent trajectory of the law. But he would have gotten a kick out of Napster.
In Jefferson's time, copyright only applied to printed books as published. Public performance and display, and creation of derivations, were public rights.
On the other hand even under a Jeffersonian copyright term of 19 years, or a neo-Jeffersonian term of 30 years (arrived at by applying Jefferson's formula to modern conditions), many of the works swapped over Napster would be under copyright. So even if we scaled back the scope and duration of copyright to reasonable levels, there might still be a compliance-problem involving Napster. If we are going to view copyright as a bargain between the public and the monopolist, the public must hold up its end of the bargain in good faith. And that might mean refraining from file-swapping in some circumstances. I agree with Mr. Vaidhyanathan, though, that the chief problem in copyright today is not infringement by private citizens, but the overreaching greed of the rightsholders.
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Any attempt to sever the notions of "public interest" or "progress of science" from the public domain in expression is an obscene mutilation of the U.S. copyright tradition. According to the framers and the Supreme Court, the only reason the copyright monopoly is to be endured even for a limited time is because the public domain will be larger afterward than otherwise.
In the context of patent law, the Supreme Court early identified the public interest with what is now called the public domain:
Mr. Justice Story means, in this particular case, that (under the law at the time) an inventor who used his invention in commerce could not rely on the invention's trade-secret status to extend his monopoly, taking out a patent only when a competitor was close to reverse-engineering his discovery. An invention in public use must be either protected by patent or in the public domain. His underlying point, however, relies on the Constitution: that the public interest is in placing the monopolized item in the public domain "at as early a period as possible". "Due regard" for the rights of the inventor does not mean allowing him as long a monopoly as he can contrive to get.
Some more recent Supreme Court cases have been equally explicit in equating the public interest with the public domain. Foremost among these is Sony v. Universal City Studios:
Note that the monopolies have two purposes: (1) "to motivate" authors and inventors; and (2) "to allow the public... access... after the limited period of exclusive control has expired." (Emphasis added). In other words, the purposes of the monopolies are: (1) to encourage authors to (2) enlarge the public domain. Furthermore, purpose (2) must always have precedence over purpose (1). If a monopoly is "primarily designed to provide a special private benefit", then Congress may not authorize it.
The court elaborated on purpose (2) in the patent-law case of Scott Paper v. Marcalus:
It is important to realize that the phrase "public domain" came fairly late into the Supreme Court's copyright-related language. But the continuity of thought from Pennock v. Dialogue to Sony shows that when the Court spoke of "public interest", "public benefit", and "public good" it meant implicitly to include what we now call the public domain. Supreme Court opinions must be read in the light of the teachings of such cases as Pennock v. Dialogue and Sony , even when the words "public domain" or "publici juris" do not occur.
For example, the following statement makes no explicit reference to the public domain or to the expiration of copyright or patent:
That the "benefits derived by the public" mentioned in this statement are nevertheless inseparable from what is now called the public domain can be seen by examining the cited case of Grant v. Raymond:
Here the "full benefit of the discovery" is something which the public "recieves after its enjoyment by the discoverer for fourteen years." (Emphasis added.) In other words, the "full benefit" is the addition of the invention to the public domain.
Consideration of this opinion leads to another observation: In characterising the patent as an agreement or transaction between the inventor and the public, Mr. Chief Justice Marshall's immediate concern in Grant v. Raymond was that the public should act in good faith, and not deprive the patentee of the patent prior to the expiration of the agreed term due to over-insistence on technicalities. But the argument cuts just as well the other way: the monopolist should act in good faith and yield "the full benefit of the discovery" after enjoying it for the agreed time.
The "public benefits" from patents are also implicitly identified with the public domain in Mr. Justice Black's dissent in Williams v. Shoe Machine Corp.:
Abstracting Mr. Justice Black's underlying presuppositions from the immediate context, one finds that the mere availability, under license from the monopolist, of the monopolized item is not identified with the "public benefits which might reasonably be hoped for under the constitutional provisions." Only when the patent expires are these "public benefits" obtained.
In fact, the equivalence of the public domain with the public purpose to be served by patents and copyrights is implicit even in statements which do not use such words as "public interest" or "public benefit". For example:
Here the context is the standard of patentability, not the duration of the monopoly. But here as in other cases, the Court's underlying presuppositions have implications for the duration of patents and copyrights. The statement that "each step forward prepares the way for the next, and each is usually taken by spontaneous trials and attempts in a hundred different places" presupposes a rich public domain from which inventors draw. That patents are granted to "substantial" inventions which add to "our" knowledge (not just to the monopolist's knowledge) presupposes that all inventions must return to the public domain from which their inventors drew in inventing them, and that the purpose of the monopoly grants is to encourage inventors to make such "substantial" discoveries in order that the public domain will be enriched.
A site which might interest those who appreciate Mutipia is the Mudcat Cafe.
The Mudcat Discussion Forum contains links to the Digital Tradition, a sort of Project Gutenberg for (mainly) public domain song lyrics. Some of the lyrics are linked to MIDI sequences, and a careful search of the forum archives can turn up many one-line melodies in ABC notation.
Professor Heald's article, linked by an anonymous contributor, is a good addition to this discussion. Professor Heald argues that the simpler sorts of musical editing (such as changing cleffs and adding slurs) should not qualify for copyright.
In the other article noted by the anonymous contributor Professor Heald proposes a number of legal actions that might be taken against those who claim payment for a bogus copyright. He seems to consider false advertising charges to be fairly promising, but I've never heard of this approach being used in the way Professor Heald proposes.
A longer version of this essay can be found at http://www.linuxworld.com/linuxworld/lw-2000-09/lw -09-penguin_1.html.
I thought judge Kaplan handled the Bridgeman v. Corel case very well. But now he hands down this judgement which grants to the DVDCCA, outside the safeguards of the patent act, patent-like protection for DVD players incorporating the CSS. This is clearly unconstitutional, yet he doesn't seem to have noticed it--unless it is one of the "concerns of the amici" that his skips over with a few words.
I agree with the contributor who noted that 18th century notions of copyright are more important now than ever. In particular we need to recover the notion, expressed by Adam Smith, James Madison, Thomas Jefferson, and Benjamin Franklin, that copyrights and patents are monopolies in derogation of the public right, and are to be tolerated only to the extent that they encourage the growth of what we now call the public domain.
Some of this history is discussed in the articles posted here.
Of course the constitution needs to evolve. The question is whether any particular development is consistent with its fundamental principles. Since I identify the public domain as the fundamental principle of copyright, I consider the acts of 1998 (DMCA, CTEA) to be largely inconsistent with copyright's deep values.
istartedi wrote:
Of course you have to draw the distinction between an idea and an implementation of an idea. For example, Z-buffering and BSPing are ideas. The source code for Quake-3 Arena is not an "idea" in the traditional sense.
Jefferson's use of the word "idea" in his letter to Isaac McPherson is not intended to refer the technical terminology of modern copyright law, in which "ideas" are distinguished from "expression". His context is patent law. By "idea" he means what lawyers call "the subject matter of patent". Transferring his abstract principle into the realm of copyright law causes causes the reference to "ideas" to be mapped into a reference to "expression". It is a mistake for us to try to evade the implications of Jefferson's principle for copyright by hiding behind his use of the word "idea".
An anonymous contributor wrote:
This patent has very little to do with as simple a thing as GET and POST. The patent covers a much more complex usage of what can be construed as GET and POST. Read the patent, before going off on it.
My response:
Can you cite to places in the claims and description which lead you to read them narrowly ? On my reading it is a description of a method (such as HTTP + browser!) for providing a uniform local user interface for fetches of diverse sorts of information from diverse remote servers. There is a little more to it than that, since it divides the software tasks among "nine logical components" in a certain way. But it still comes across as pretty broad on a first reading.
This article in the Journal of Intellectual Property Law proposes ways of fighting against payment demands based on spurious copyrights. One of the four suggestions is a false-advertising action which can be brought under the laws of some states. I wonder if the professor's theory (which so far as I know has never been tested on any copyright claims) might be applied in the patent realm as well.
Assuming the worst, that the patent is valid: would every web site that used one of these methods be liable for infringement, or only the makers of the software that was installed at those sites ? I am not a lawyer, but I fear that the web sites themselves would be liable, unless the software manufacturer had licensed the patent in a certain way. Anyone have any thoughts on this ?
[Y]our ideas belong to you, too. And "intellectual property" is property, period.--Edgar Bronfman, Jr., San Jose, California, May 26, 2000. (from the article cited).
Let us unpack this and compare it to authoritative statements from the interpretation of the congressional power to grant copyrights and patents, or of the principles underlying that power:
1. "Your ideas belong to you"
"It would be curious...if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, received instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me."--Thomas Jefferson, Letter to Isaac McPherson, August 13, 1813.
2. "And 'intellectual property' is property, period."
"In copyright property has reached a more abstract expression. The right to exclude is not directed to an object in possession or owned, but it is in vacuo, so to speak. It restrains the spontaneity of men where, but for it, there would be nothing of any kind to hinder their doing as they saw fit. It is a prohibition of conduct remote from the persons or tangibles of the party having the right...It is a right which could not be recognized or endured for more than a limited time." --Oliver Wendell Holmes, White-Smith Music Publishing Co. v. Apollo Co. 209 U.S. 1., 19, (1908).
The citation for that case is:
Sociedad de Autores Españoles v. Americo Marin, 4 Porto Rico Federal Reports 288 (D.P.R. Sept. 18, 1908.)