So you're actually okay that nothing is entering the public domain any more?
You guys are so ridiculously over-dramatic. Copyright terms were extended by 20 years by the CTEA, so that means that there's a period of 20 years where works that would have fallen into the public domain do not. We are still in that 20 year period. That 20 year extension ends in six years (I think), so that means that works will begin falling into the public domain again soon.
What Mike can't ever do is back up his claim that this 20 year bump is negatively affecting culture. It's empty rhetoric based on faith. Mike's own "Sky is Rising" puff piece shows that he's simultaneously arguing that culture is blossoming and being starved. It's silly--and it seems incredibly dishonest.
The fact is, since the 1976 Act makes everything copyrighted upon fixation, the public domain will be greater than ever. You guys want it all right now, but that's not the bargain that copyright strikes. I'm sorry that you can't see past the end of your nose.
But to pretend that culture is suffering is stupid. I am surrounded by so much culture that it's crazy. You can cherry pick a couple of scenarios where someone wanted to do something but couldn't (Techdirt's specialty), but on balance culture is alive an well. Copyright is a trade-off, and it brings us many, many, many wonderful works that we all enjoy. You guys love those works so much that you're willing to violate other people's rights to get them. That sort of says it all, I think.
For anyone who actually understands the value of the public domain in enriching and enhancing culture, the fact that the US -- at the behest of the entertainment industry, which has often mined the public domain for its own works -- isn't just shameful, it's downright despicable. We're stifling our own culture.
Give me a break with the empty, anti-copyright rhetoric. Culture is alive and well and thriving more than ever. I thought the sky was rising, Mike. Remember?
I am saying that he designed the website knowing and intending that it would be used to infringe. He designed it because of infringement, not in spite of it.
You can speculate that he knew, but unless you have a source to cite, I don't see anything that indicates he knew the site would be used for any infringing uses at all.
Google Translate says "The Court of Appeal, however, that the man must have known that the purpose of studentbay.se were delinquent, and judge him because of probation and damages." The court must have noticed the "bay" name and the pirate ship emblem. Hmmm. This one's tough to crack.
So the court found that on the evidence he must have known that the site was for the purpose of causing infringement. It says he was profiting from it as well, charging "20 crowns" to join. So he doesn't seem at all innocent to me. Of course, Mike will defend this guy and pretend like what he did was OK and that it's really the world who just understand the internet. Hogwash. Pirate-apologism at its worst. Seriously.
So by what you are saying all gun manufacturers are secondary liable for the murder of people by guns because they all know full well that guns are being used to kill people.
No. I'm saying that a person who knowingly designs a website that exist for the primary purpose of facilitating mass infringement should be held accountable. This stuff isn't hard. You guys just pretend like it is.
It's really amazing how fearful people who don't understand technology are of anyone who has any connection to file sharing, no matter how remote. Over in Sweden, an appeals court has overturned a lower court ruling absolving a web designer of any liability for designing the StudentBay -- a torrenting site for educational material -- and decided that because he designed the site, he must be liable for what users did on the site. This goes beyond secondary liability into some sort of weird tertiary liability. It already seems odd to blame the operators of the site for actions taken by its users, but now we're holding the graphic designers responsible too? It's a sort of scorched earth policy from people who don't seem to understand how the internet works, and who just seem to want to "destroy everything." Of course, the end result is that anyone with half a clue just thinks the judicial system is a complete joke. That doesn't seem useful for anyone.
Seems like plain old secondary liability to me. He's liable as a contributory infringer if (1) he materially contributed to the infringement, and (2) he had knowledge of it. Sounds like he knowingly designed a website that was used to infringe. I don't ever understand your "they don't understand the internet!" argument. Seems like completely empty rhetoric, and you use it way too much. Someone set up a site on purpose so that people would use that site to infringe. Just because you don't like the fact that the law rightfully holds such people liable for the intended results of their actions, don't pretend like the judges are a bunch of idiots who don't understand the internet. They understand it well enough to spot a party who should be held liable for the actions they willingly chose to take.
State copyright claims have been trumped by federal copyright beginning in 1976.
The only rights preempted under 301(a) are those equivalent to the rights under 106 concerning works within federal copyright subject matter. You're right that many rights were preempted by the 1976 Act, but you're missing that some state-granted rights were not. I know that my state has copyright rights that were not preempted, and I believe that many if not all other states do as well.
Thanks. Yeah, I don't consider those to be the beginning of modern day copyright since that was about licensing and censorship and the like. That's certainly the beginning of a right to copy, but it's not the beginning of modern copyright which is based on utilitarian and natural law theories. Modern copyright is the legitimate offspring of those darker days, no doubt, but I don't see how that's relevant to this discussion.
The fact that Holmes v. Hurst talks about the Star Chamber and the Stationers' Monopoly should make this clear. Neither of these were "copyright" in the modern sense of the term - neither claimed (nor even suggested) that authors had either a natural or common-law right to a post-publication monopoly.
It's funny you say that because I got that Holmes case from Patry's treatise:
As in England, the question arose of whether the federal statute had replaced the common law as the exclusive mechanism for copyright protection. In Wheaton v. Peters, the first copyright case before the Supreme Court, this question, presented in Great Britain in Millar v. Taylor and Donaldson v. Beckett was faced. Although the Wheaton majority found, as had the House of Lords in construing the Statute of Anne, that the Copyright Act provided the exclusive mechanism for protection of published works, it did so not on the ground that the Copyright Act had “preempted” existing common law rights, but rather on the ground that there was no federal common law and thus such rights “originated, if at all, under the acts of Congress.” This holding was controversial among legal writers, and subsequently the Supreme Court [in Holmes v. Hurst], noting the controversy over the “propriety” of Wheaton's holding, wrote “while a right did exist by common law, it has been superseded by statute.”
1 Patry on Copyright § 1:19.
So the Supreme Court in Holmes took back what it said earlier in Wheaton about the nonexistence of common law copyright. It's not clear to me whether that's referring to state or federal common law, but nonetheless the Court did change their story on the point.
Why do you care so much about trying to rewrite reality and history? What's in it for you? I can understand what the RIAA stands to gain, but what do you?
I'm not trying to rewrite anything. I'm trying to understand the past because it's important that we get it right when using the past to make policy arguments today, which is what we're doing. Mike is of the opinion that copyright is purely an economic regulation, completely devoid of any natural rights origin. I think that's bunk, and there's a rich history of natural rights theory and treatment of copyright as property. If anything, I think Mike is the one trying to rewrite history as he ignores all of the evidence that the Framers held Lockean notions of copyright. My understanding is that they held multiple views, utilitarian and natural, and that copyright is a product of a plurality of views. Mike seems to think that the very Framers whom he admits held Lockean views nonetheless completely eschewed those views when granting authors a statutory right to the fruits of their intellectual labor. I don't think that makes any sense.
State copyright laws are equally as much "a creature of statute" as Federal copyright law.
Nope. Here's the New York Court of Appeals (the state's highest court) 1n 1872 saying there are non-statutory common law copyrights in :
Whatever rights the plaintiff has in the drama, which is the subject of the controversy, exist at common-law, independent of any statute either of the State or the United States. The protection he seeks is of property, and a right of property which is well established and recognized wherever the common-law prevails, and not of a franchise or privilege conferred by statute. The State courts have jurisdiction, as in other actions affecting common-law rights or property interests. It may be doubtful whether the act of congress of 1831 (chapter 116, section 9, 4th Statutes at Large, 436) gives an action in respect to manuscripts, other than such as may be the subject of a copyright, under the laws of the United States. In Keene v. Wheatley (9 American Law Register, 45), the Circuit Court of the United States had jurisdiction by reason of the citizenship of the parties, and the case was decided by the rules of the common-law and upon the authority of adjudged cases in this country and in England. But if jurisdiction is, by the statute, conferred upon the federal courts in a case like this, the act does not purport to and does not make the jurisdiction exclusive, or deprive State courts of *536 jurisdiction in actions, legal or equitable, touching the common-law rights of authors. At most, the statute gives parties within its provisions, and not claiming the benefits of a copyright under the laws of the United States, a cumulative remedy and a choice of tribunals. The jurisdiction of the State courts in cases in which it had before been exercised, was not taken away or in any respect impaired.
The common-law rights of authors, as now recognized, existed before the passage of copyright laws, and have not been taken away or impaired by those laws. By section 9 of the act of congress of 1831, no new right is secured or conferred, but simply a remedy for the violation of an existing right in another forum. (Pierrepont v. Fowle, 2 Wood & Min., 43; Woolsey v. Judd, 4 Duer, 379.) The objection to the jurisdiction of the courts of the State is not well taken.
Palmer v. De Witt, 47 N.Y. 532, 535-36 (1872).
Note too how the court comfortably calls it "property."
The majority of the Law Lords voted this way - but the House of Lords voted the other way.
This was generally acknowledged at the time - even by the stationers company themselves. Just 6 days later they wrote
"[B]y a late solemn decision of the House of Peerssuch common law right of authors and their assigns hath been declared to have no existence, whereby your petitioners will be very great sufferers thro' their involuntary misapprehension of the law".
I read that quote as meaning that there was no common law copyright because it has been superseded by the Statute of Anne, which is what the Lords said in Donaldson (as reported by the Supreme Court in Wheaton). That's not contradictory.
I'm quoting what the Supreme Court said in Wheaton. I quoted the exact text and it says what I'm saying it says. I understand that some professor wrote something a couple of years ago that you think says something else. I will read it, as I said.
I appreciate the cite, and I will read what Deazley says. I've been wondering about this stuff since that 6-page paper came out, so I'm glad Mike is talking about it as well. I'm actually reading Millar v. Taylor now, and I plan to read Donaldson next. I may read Deazley first though so I'm better prepared for Donaldson. Thanks again.
"the House of Lords, in line with the majority of the law lords who spoke to the issue, rejected the argument in favour of common law copyright, but that the significance of this decision was nevertheless obscured as a result of the manner in which the opinions of the judges and the law lords was subsequently recorded and reported."
I'm not misreading the British Constitution. Perhaps the Supreme Court was. I'm just quoting what was said in Wheaton. There it says that a majority of the Lords held that there was in fact common law copyright but that it was then later superseded by statute. I understand that you're saying that it was the Law Lords and not the whole House of Lords and that perhaps the House of Lords said something different. I'll have to read through the materials there to see. I'm not very well versed in appellate procedures of 18th century England, and perhaps neither was the Supreme Court. That might explain the error if there was one.
Nonetheless, the fact remains that courts of equity were enjoining copying before there was statutory copyright. In my mind, that's the definition of common law copyright. The fact also remains that in the U.S. there was also common law copyright in the states--as there still is to this day.
Richard is already debunking this claim, but even if your basic claim was accurate, it actually works against your argument. At best it shows that SOME people believed they were natural rights (and we all agree that some did), but that they were OVERRULED in the end by people saying there was no natural rights there.
You're still missing the point. The majority in Donaldson said there was common law copyright that was thereafter preempted by the Statute of Anne. You're trying to say that there was no common law copyright, i.e., that it's not natural. But that's not what they said in Donaldson.
The point is that there are natural rights in copyright that developed in the common law, but then later the statutes codified and preempted those rights. You are twisting this to mean that there is no natural right in copyright. That's not at all the case. There is a natural right. That right was protected at common law at first, and then later it was protected by statute.
In fact, the Supreme Court later on recognized that there is in fact common law copyright that is superseded by statute (contrary to what was said in Wheaton):
The right of an author, irrespective of statute, to his own productions and to a control of their publication, seems to have been recognized by the common law, but to have been so ill defined that from an early period legislation was adopted to regulate and limit such right. The earliest recognition of *85 this common-law right is to be found in the charter of the Stationers' Company, and certain decrees of the star chamber promulgated in 1556, 1585, 1623, and 1637, providing for licensing and regulating the manner of printing and the number of presses throughout the kingdom, and prohibiting the publication of unlicensed books. Indeed, the star chamber seems to have exercised the power of search, confiscation, and imprisonment without interruption from parliament, up to its abolition, in 1641. From this time the law seems to have been in an unsettled state-although parliament made some efforts to restrain the licentiousness of the press-until the eighth year of Queen Anne, when the first copyright act was passed, giving authors a monopoly in the publication of their works for a period of from 14 to 28 years. Notwithstanding this act, however, the chancery courts continued to hold that, by the common law and independently of legislation, there was a property of unlimited duration in printed books. This principle was affirmed so late as 1769 by the court of king's bench in the very carefully considered case of Millar v. Taylor, 4 Burrows, 2303, in which the right of the author of ‘Thompson's Seasons' to a monopoly of this work was asserted and sustained. But a few years thereafter the house of lords, upon an equal division of the judges, declared that the common-law right had been taken away by the statute of Anne, and that authors were limited in their monopoly by that act. Donaldson v. Becker, Id. 2408. This remains the law of England to the present day. An act similar in its provisions to the statute of Anne was enacted by congress in 1790, and the construction put upon the latter in Donaldson v. Becket was followed by this court in Wheaton v. Peters, 8 Pet. 591. While the propriety of these decisions has been the subject of a good deal of controversy among legal writers, it seems now to be considered the settled law of this country and England that the right of an author to a monopoly of his publications is measured and determined by the copyright act,-in other words, that, while a right did exist by common law, it has been superseded by statute.
Holmes v. Hurst, 174 U.S. 82, 84-85 (1899).
So there the Supreme Court says that there was common law copyright. The fact remains that the common law recognized copyright rights, and then later the statutory laws preempted much of those rights. That doesn't at all negate the fact that copyright is natural.
The court then went much further in noting that the Constitution explicitly presents limits on copyright, and there is no evidence that it was establishing the recognition of a natural right:
That congress, in passing the act of 1790, did not legislate in reference to existing rights, appears clear, from the provision that the author, &c. "shall have the sole right and liberty of printing," &c. Now if this exclusive right existed at common law, and congress were about to adopt legislative provisions for its protection, would they have used this language? Could they have deemed it necessary to vest a right already vested. Such a presumption is refuted by the words above quoted, and their force is not lessened by any other part of the act.
Congress, then, by this act, instead of sanctioning an existing right, as contended for, created it. This seems to be the clear import of the law, connected with the circumstances under which it was enacted.
Another point I think you're missing is that the Supreme Court in Wheaton said there was no FEDERAL common law copyright. That's not that surprising since there was federal statutory copyright right from the start which would have preempted any such claim anyway. The Court did not say that there was no state common law copyright--which there in fact was and in fact still is in some states.
I think perhaps you're misunderstanding the discussion of Donaldson v. Beckett in Wheaton. The Wheaton Court notes that a majority of the House of Lords in Donaldson acknowledged that there was in fact common law copyright, but then they held that those rights were preempted by the Statute of Anne. From Wheaton:
This question was brought before the house of lords, in the case of Donaldson v. Beckett and others, reported in 4 Burr. 2408.
Lord Mansfield, being a peer, through feelings of delicacy, declined giving any opinion. The eleven judges gave their opinions on the following points.
1st. Whether at common law an author of any book or literary composition, had the sole right of first printing, and publishing the same for sale; and might bring an action against any person who printed, published and sold the same, without his consent. On this question there were eight judges in the affirmative, and three in the negative.
2d. If the author had such right originally, did the law take it away, upon his printing and publishing such book or literary composition; and might any person, afterward, reprint and sell, for his own benefit, such book or literary composition, against the will of the author. This question was answered in the affirmative, by four judges, and in the negative by seven.
3d. If such action would have lain, at common law, is it taken away by the statute of 8 Anne; and is an author, by *656 the said statute, precluded from every remedy, except on the foundation of the said statute, and on the terms of the conditions prescribed thereby. Six of the judges, to five, decided that the remedy must be under the statute.
4th. Whether the author of any literary composition, and his assigns, had the sole right of printing and publishing the same in perpetuity, by the common law. Which question was decided in favour of the author, by seven judges to four.
5th. Whether this right is any way impeached, restrained or taken away, by the statute 8 Anne? Six, to five judges, decided that the right is taken away by the statute. And the lord chancellor, seconding Lord Camden's motion to reverse, the decree was reversed.
It would appear from the points decided, that a majority of the judges were in favour of the common law right of authors, but that the same had been taken away by the statute.
Wheaton v. Peters, 33 U.S. 591, 655-56 (1834).
So the part you're missing is that the House of Lords acknowledged that there was in fact a natural right to copyright. That natural right was superseded by statute, but that's not the point. The point is that but for the Statute of Anne, the House of Lords recognized that authors had natural rights to the fruits of their intellectual labor.
(1) It's funny that you pretend that Mossoff's view is "not supported by historical facts," yet you can't cite even one single fact he puts forth that is not supported. Nor does Oliar even rebut what Mossoff is saying.
(2) Oliar's paper is about the meaning of the Progress Clause. He admits that there are currently four competing views for what that meaning should properly be, and he explicitly admits that his view is the minority view. Funny that you cite to it while pretending to brush aside Mossoff as being the minority view.
(3) Oliar actually admits that what I'm saying is true since he admits the historical fact that the Framers held many views.
I would love to discuss all of this, in depth, with lots of nuance. From what I can tell, you'd rather just keep repeating the mantra that IP is ONLY about utilitarianism. And you'll continue to disregard all evidence to the contrary to get there, no doubt. The fact is that IP has been thought of as a property right from the very beginning. It's not some economic regulation completely devoid of any Lockean influence. It never has been.
On the post: The US's Public Domain Class Of 2013
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You guys are so ridiculously over-dramatic. Copyright terms were extended by 20 years by the CTEA, so that means that there's a period of 20 years where works that would have fallen into the public domain do not. We are still in that 20 year period. That 20 year extension ends in six years (I think), so that means that works will begin falling into the public domain again soon.
What Mike can't ever do is back up his claim that this 20 year bump is negatively affecting culture. It's empty rhetoric based on faith. Mike's own "Sky is Rising" puff piece shows that he's simultaneously arguing that culture is blossoming and being starved. It's silly--and it seems incredibly dishonest.
The fact is, since the 1976 Act makes everything copyrighted upon fixation, the public domain will be greater than ever. You guys want it all right now, but that's not the bargain that copyright strikes. I'm sorry that you can't see past the end of your nose.
But to pretend that culture is suffering is stupid. I am surrounded by so much culture that it's crazy. You can cherry pick a couple of scenarios where someone wanted to do something but couldn't (Techdirt's specialty), but on balance culture is alive an well. Copyright is a trade-off, and it brings us many, many, many wonderful works that we all enjoy. You guys love those works so much that you're willing to violate other people's rights to get them. That sort of says it all, I think.
On the post: The US's Public Domain Class Of 2013
Give me a break with the empty, anti-copyright rhetoric. Culture is alive and well and thriving more than ever. I thought the sky was rising, Mike. Remember?
On the post: Swedish Appeals Court Says Web Designer Is Responsible For Copyright Infringement On StudentBay
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On the post: Swedish Appeals Court Says Web Designer Is Responsible For Copyright Infringement On StudentBay
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Go here: http://www.idg.se/2.1085/1.484006/studentbay-doms-i-hovratten
Google Translate says "The Court of Appeal, however, that the man must have known that the purpose of studentbay.se were delinquent, and judge him because of probation and damages." The court must have noticed the "bay" name and the pirate ship emblem. Hmmm. This one's tough to crack.
So the court found that on the evidence he must have known that the site was for the purpose of causing infringement. It says he was profiting from it as well, charging "20 crowns" to join. So he doesn't seem at all innocent to me. Of course, Mike will defend this guy and pretend like what he did was OK and that it's really the world who just understand the internet. Hogwash. Pirate-apologism at its worst. Seriously.
On the post: Swedish Appeals Court Says Web Designer Is Responsible For Copyright Infringement On StudentBay
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No. I'm saying that a person who knowingly designs a website that exist for the primary purpose of facilitating mass infringement should be held accountable. This stuff isn't hard. You guys just pretend like it is.
On the post: Swedish Appeals Court Says Web Designer Is Responsible For Copyright Infringement On StudentBay
Seems like plain old secondary liability to me. He's liable as a contributory infringer if (1) he materially contributed to the infringement, and (2) he had knowledge of it. Sounds like he knowingly designed a website that was used to infringe. I don't ever understand your "they don't understand the internet!" argument. Seems like completely empty rhetoric, and you use it way too much. Someone set up a site on purpose so that people would use that site to infringe. Just because you don't like the fact that the law rightfully holds such people liable for the intended results of their actions, don't pretend like the judges are a bunch of idiots who don't understand the internet. They understand it well enough to spot a party who should be held liable for the actions they willingly chose to take.
On the post: RIAA Lawyers Trying To Rewrite History Of Copyright Clause Through Shoddy Scholarship And Selective Quotation
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The only rights preempted under 301(a) are those equivalent to the rights under 106 concerning works within federal copyright subject matter. You're right that many rights were preempted by the 1976 Act, but you're missing that some state-granted rights were not. I know that my state has copyright rights that were not preempted, and I believe that many if not all other states do as well.
On the post: RIAA Lawyers Trying To Rewrite History Of Copyright Clause Through Shoddy Scholarship And Selective Quotation
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On the post: RIAA Lawyers Trying To Rewrite History Of Copyright Clause Through Shoddy Scholarship And Selective Quotation
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It's funny you say that because I got that Holmes case from Patry's treatise:1 Patry on Copyright § 1:19.
So the Supreme Court in Holmes took back what it said earlier in Wheaton about the nonexistence of common law copyright. It's not clear to me whether that's referring to state or federal common law, but nonetheless the Court did change their story on the point.
On the post: RIAA Lawyers Trying To Rewrite History Of Copyright Clause Through Shoddy Scholarship And Selective Quotation
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I'm not trying to rewrite anything. I'm trying to understand the past because it's important that we get it right when using the past to make policy arguments today, which is what we're doing. Mike is of the opinion that copyright is purely an economic regulation, completely devoid of any natural rights origin. I think that's bunk, and there's a rich history of natural rights theory and treatment of copyright as property. If anything, I think Mike is the one trying to rewrite history as he ignores all of the evidence that the Framers held Lockean notions of copyright. My understanding is that they held multiple views, utilitarian and natural, and that copyright is a product of a plurality of views. Mike seems to think that the very Framers whom he admits held Lockean views nonetheless completely eschewed those views when granting authors a statutory right to the fruits of their intellectual labor. I don't think that makes any sense.
On the post: RIAA Lawyers Trying To Rewrite History Of Copyright Clause Through Shoddy Scholarship And Selective Quotation
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On the post: RIAA Lawyers Trying To Rewrite History Of Copyright Clause Through Shoddy Scholarship And Selective Quotation
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Nope. Here's the New York Court of Appeals (the state's highest court) 1n 1872 saying there are non-statutory common law copyrights in :Palmer v. De Witt, 47 N.Y. 532, 535-36 (1872).
Note too how the court comfortably calls it "property."
On the post: RIAA Lawyers Trying To Rewrite History Of Copyright Clause Through Shoddy Scholarship And Selective Quotation
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Except that this statement is itself incorrect.
The majority of the Law Lords voted this way - but the House of Lords voted the other way.
This was generally acknowledged at the time - even by the stationers company themselves. Just 6 days later they wrote
"[B]y a late solemn decision of the House of Peerssuch common law right of authors and their assigns hath been declared to have no existence, whereby your petitioners will be very great sufferers thro' their involuntary misapprehension of the law".
I read that quote as meaning that there was no common law copyright because it has been superseded by the Statute of Anne, which is what the Lords said in Donaldson (as reported by the Supreme Court in Wheaton). That's not contradictory.
On the post: RIAA Lawyers Trying To Rewrite History Of Copyright Clause Through Shoddy Scholarship And Selective Quotation
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I'm quoting what the Supreme Court said in Wheaton. I quoted the exact text and it says what I'm saying it says. I understand that some professor wrote something a couple of years ago that you think says something else. I will read it, as I said.
On the post: RIAA Lawyers Trying To Rewrite History Of Copyright Clause Through Shoddy Scholarship And Selective Quotation
Re: Bootstraps!
On the post: RIAA Lawyers Trying To Rewrite History Of Copyright Clause Through Shoddy Scholarship And Selective Quotation
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The detaails are here http://copy.law.cam.ac.uk/cam/tools/request/showRecord.php?id=record_uk_1774
"the House of Lords, in line with the majority of the law lords who spoke to the issue, rejected the argument in favour of common law copyright, but that the significance of this decision was nevertheless obscured as a result of the manner in which the opinions of the judges and the law lords was subsequently recorded and reported."
I'm not misreading the British Constitution. Perhaps the Supreme Court was. I'm just quoting what was said in Wheaton. There it says that a majority of the Lords held that there was in fact common law copyright but that it was then later superseded by statute. I understand that you're saying that it was the Law Lords and not the whole House of Lords and that perhaps the House of Lords said something different. I'll have to read through the materials there to see. I'm not very well versed in appellate procedures of 18th century England, and perhaps neither was the Supreme Court. That might explain the error if there was one.
Nonetheless, the fact remains that courts of equity were enjoining copying before there was statutory copyright. In my mind, that's the definition of common law copyright. The fact also remains that in the U.S. there was also common law copyright in the states--as there still is to this day.
On the post: RIAA Lawyers Trying To Rewrite History Of Copyright Clause Through Shoddy Scholarship And Selective Quotation
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You're still missing the point. The majority in Donaldson said there was common law copyright that was thereafter preempted by the Statute of Anne. You're trying to say that there was no common law copyright, i.e., that it's not natural. But that's not what they said in Donaldson.
The point is that there are natural rights in copyright that developed in the common law, but then later the statutes codified and preempted those rights. You are twisting this to mean that there is no natural right in copyright. That's not at all the case. There is a natural right. That right was protected at common law at first, and then later it was protected by statute.
In fact, the Supreme Court later on recognized that there is in fact common law copyright that is superseded by statute (contrary to what was said in Wheaton):Holmes v. Hurst, 174 U.S. 82, 84-85 (1899).
So there the Supreme Court says that there was common law copyright. The fact remains that the common law recognized copyright rights, and then later the statutory laws preempted much of those rights. That doesn't at all negate the fact that copyright is natural.
On the post: RIAA Lawyers Trying To Rewrite History Of Copyright Clause Through Shoddy Scholarship And Selective Quotation
Another point I think you're missing is that the Supreme Court in Wheaton said there was no FEDERAL common law copyright. That's not that surprising since there was federal statutory copyright right from the start which would have preempted any such claim anyway. The Court did not say that there was no state common law copyright--which there in fact was and in fact still is in some states.
On the post: RIAA Lawyers Trying To Rewrite History Of Copyright Clause Through Shoddy Scholarship And Selective Quotation
So the part you're missing is that the House of Lords acknowledged that there was in fact a natural right to copyright. That natural right was superseded by statute, but that's not the point. The point is that but for the Statute of Anne, the House of Lords recognized that authors had natural rights to the fruits of their intellectual labor.
On the post: Intellectual Ventures Claims It's Misunderstood: It's Really Just Trying To Help Everyone Sift Through And Find Good Patents
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I just read the whole thing. A few thoughts:
(1) It's funny that you pretend that Mossoff's view is "not supported by historical facts," yet you can't cite even one single fact he puts forth that is not supported. Nor does Oliar even rebut what Mossoff is saying.
(2) Oliar's paper is about the meaning of the Progress Clause. He admits that there are currently four competing views for what that meaning should properly be, and he explicitly admits that his view is the minority view. Funny that you cite to it while pretending to brush aside Mossoff as being the minority view.
(3) Oliar actually admits that what I'm saying is true since he admits the historical fact that the Framers held many views.
I would love to discuss all of this, in depth, with lots of nuance. From what I can tell, you'd rather just keep repeating the mantra that IP is ONLY about utilitarianism. And you'll continue to disregard all evidence to the contrary to get there, no doubt. The fact is that IP has been thought of as a property right from the very beginning. It's not some economic regulation completely devoid of any Lockean influence. It never has been.
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