tag:blogger.com,1999:blog-3829599.post3808754150277441320..comments2024-01-28T00:20:40.933-08:00Comments on Agoraphilia: Unconstitutional Copyrights?Unknownnoreply@blogger.comBlogger12125tag:blogger.com,1999:blog-3829599.post-85072916020534034532009-09-04T12:36:55.617-07:002009-09-04T12:36:55.617-07:00Actually, what about the application of the rule a...Actually, what about the application of the rule against perpetuity to the construction of the constitutional meaning of a reasonable limitation?Stephenhttps://www.blogger.com/profile/00219023897626648057noreply@blogger.comtag:blogger.com,1999:blog-3829599.post-41669636618705503152009-08-06T10:06:29.723-07:002009-08-06T10:06:29.723-07:00ceh: Don't get me started on how broadly cour...ceh: Don't get me started on how broadly courts have interpreted the powers of federal lawmakers. I'll tell you about the unconstitutionality of that interpretation, and you'll conclude that I'm an ivory tower theorist.Tom W. Bellhttps://www.blogger.com/profile/02790351458154066358noreply@blogger.comtag:blogger.com,1999:blog-3829599.post-47861062535324573162009-08-05T16:49:45.877-07:002009-08-05T16:49:45.877-07:00*edit* the 2nd reference to 1790 should read 1793....*edit* the 2nd reference to 1790 should read 1793.cehnoreply@blogger.comtag:blogger.com,1999:blog-3829599.post-60807194892133983032009-08-05T16:48:08.638-07:002009-08-05T16:48:08.638-07:00I'm no constitutional scholar, but I thought 1...I'm no constitutional scholar, but I thought 1.8 a/k/a the enumerated powers was broadly construed, unless narrowed by some other provision. Cf. 1.9 ("limits on congress"). For example, the 1.8 power to "regulate commerce" among the states has been interpreted fairly broadly, at least to varying degrees, throughout U.S. history.<br /><br />With respect to the issue of whether they meant to be exercising the full extent of their powers, there is evidence that in at least some cases, they didn't mean to. For example, patentable subject matter was defined in 1790 as "any useful art, manufacture, engine, machine, or device." In 1790, the scope was expanded to include "composition of matter." Processes did not become patentable subject matter until much later.<br /><br />If patents received a lot more attention than copyrights back then, shouldn't that make it more likely that Congress would try to maximize the scope of patentable subject matter?<br /><br />As an interesting aside, do you think Congress intended the term "useful art" in the 1790 Patent Act (titled "An Act to promote the useful Arts") to take the same meaning as the constitutional "useful arts"? If so, could you get a patent on a book in 1790? Note also that the word "science" is conspicuously absent from the 1790 Act.cehnoreply@blogger.comtag:blogger.com,1999:blog-3829599.post-23655413285973585382009-08-05T08:29:55.101-07:002009-08-05T08:29:55.101-07:00Don Marti: I suspect you jest--and well!--but in ...Don Marti: I suspect you jest--and well!--but in all seriousness, courts would probably dodge judgments about whether any particular work (as opposed to class of works) promotes progress. It would suffice if, say, the plaintiff had created a map, maps generally promote the progress of science and useful arts, and defendant had infringed.<br /><br />Scott: I should think that photographs would more likely satisfy the constitutional test I've advanced than drawings or paintings would. As to your second question, it would probably take some back-and-forth in the courts to figure out what works best, but I'd start with the presumption that the way a work get used, rather than the (always elusive) intent of its author matters most.<br /><br />ceh: Yes, you can interpret "useful arts" that broadly . . . but only by doing violence to the notion that the words meaningfully limit lawmakers' powers. Agreed, though, that the 1790 Act might well have represented only part of what 1790 lawmakers thought themselves empowered to do. We have next to no information about that question, though. Copyright was not a very big deal back then; patents got much more attention.Tom W. Bellhttps://www.blogger.com/profile/02790351458154066358noreply@blogger.comtag:blogger.com,1999:blog-3829599.post-53692133432833439672009-08-03T15:57:07.171-07:002009-08-03T15:57:07.171-07:00If indeed we are presupposing that "science&q...If indeed we are presupposing that "science" includes the humane sciences, we might also explore what the Founders meant by "useful" arts. I think this question has been addressed at length in the patent context, but query what is the measure of a writing's usefulness? I think that the Founders knew many contemporary works to be purely fictional and expressive in nature, e.g. poems, plays, paintings. As such, perhaps they understood such works to be "useful" because of their expressive nature, such that the liberal arts, including visual arts, would have been considered to be useful. <br /><br />As support, it is also important to note that article 1, section 8 is permissive, not mandatory, in that it defines the scope of Congress's powers, but it does not require Congress to do anything (e.g. Congress may also organize militias and establish uniform laws on weights and measures, but does not currently do so). Thus, insofar as the 1790 Act was also drafted by the Founders, there is no evidence (based on what you have written so far) that they intended the Act to be coextensive with their constitutional legislative power to grant copyrights. In other words, they could have thought that "science and useful arts" was really broad class of writings and they wanted only to give protection to a subset thereof. As the economic value of other types of works expanded, they said fine, let's expand the subject matter. There is quite a bit of scholarship about the economic impetus behind the expansion of statutory copyright subject matter through the nineteenth and twentieth centuries (some cited by TWB in his own useful arts, if I recall correctly...).<br /><br />Anyways, just throwing this out there. I look forward to seeing the final version of your book.cehnoreply@blogger.comtag:blogger.com,1999:blog-3829599.post-20302392816209776432009-07-29T18:08:59.518-07:002009-07-29T18:08:59.518-07:00I understand how the Adam's image would be pro...I understand how the Adam's image would be protected under the book's copyright. What about the photograph itself?<br /><br />Tom, are there any cases where an independent photograph can, constitutionally, have a copyright?<br /><br />Under the "scientific or useful arts" standard, is it intent or usage that would give copyright protection to the photographer?Scotthttps://www.blogger.com/profile/02066059228484549262noreply@blogger.comtag:blogger.com,1999:blog-3829599.post-32848938385328644012009-07-29T14:58:34.599-07:002009-07-29T14:58:34.599-07:00Does the "progress" doctrine imply that ...Does the "progress" doctrine imply that courts should recognize a bad science or useless art defense in copyright infringement cases? Or, if A writes a book of really bad advice, and B publishes a derivative work with substantial corrections, should B be able to claim the "progress defense?"Don Martihttp://zgp.org/~dmarti/noreply@blogger.comtag:blogger.com,1999:blog-3829599.post-11270201449727077912009-07-29T12:54:14.786-07:002009-07-29T12:54:14.786-07:00In answer to Scott, I think the nature of copyrigh...In answer to Scott, I think the nature of copyright protection would make all the scenarios you present to be protected from unfair use. A photo from Ansel Adams used in a book would need the permission Ansel Adams. Similarly, if someone buys the rights to the book, they would have theoretically retained the same permission to use Adams' photo in that book, however if they were to put that same photo in a new book, they would need to get permission from Ansel again since the photo is the property of Ansel and the original author was just given permission to use it.Tenrou Ugetsuhttp://www.legalmatch.comnoreply@blogger.comtag:blogger.com,1999:blog-3829599.post-27121555401847371722009-07-29T08:59:15.262-07:002009-07-29T08:59:15.262-07:00dgm: Yes, thanks.
Scott: Interesting hypo. I s...dgm: Yes, thanks.<br /><br />Scott: Interesting hypo. I suppose that the easiest solution would be the one that the Founding generation evidently took in the 1790 Act, with regard to books: Ignore the particulars of each work and instead judge the medium by its general propensity to promote science and useful arts. They knew of fiction books, after all, but probably reasoned that most books (as they knew them) aimed at practical goals. So, too, might lawmakers judge photographs. But songs? Dances? Operas? It strains credulity to think most of those would promote science and useful arts.Tom W. Bellhttps://www.blogger.com/profile/02790351458154066358noreply@blogger.comtag:blogger.com,1999:blog-3829599.post-76511063386803896162009-07-29T08:17:34.829-07:002009-07-29T08:17:34.829-07:00a question about photography.
Since illustrations...a question about photography.<br /><br />Since illustrations should be allowed copyright status, would photographs used in science books have copyright protection separate from the book itself? <br /><br />If I take a picture of a tree for the purpose of selling to a science book but it never sells, is it copyright protected? What if Ansel Adams took a picture of a tree (for purely artistic reasons) and someone buys the rights and puts it in a science book, does that image get copyright protection separate from the book?<br />How would you decide which picture is allowed a copyright. By intent or use?Scotthttps://www.blogger.com/profile/02066059228484549262noreply@blogger.comtag:blogger.com,1999:blog-3829599.post-89762738298496945512009-07-29T06:08:46.730-07:002009-07-29T06:08:46.730-07:00"Most songs, plays, fictional books, ..., bec..."Most songs, plays, fictional books, ..., because they fail to promote the progress of science and the useful arts, would on that reasoning qualify as unconstitutional."<br /><br />Don't you mean to say that affording them copyright protection would be unconstitutional, not that they are, in themselves, unconstitutional?dgmhttps://www.blogger.com/profile/05784048338004578599noreply@blogger.com