Comments on: Copyright Limits http://www.concurringopinions.com/archives/2009/04/copyright_limit.html The Law, the Universe, and Everything Tue, 14 Feb 2012 05:18:12 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: Bruce Boyden http://www.concurringopinions.com/archives/2009/04/copyright_limit.html/comment-page-1#comment-43073 Bruce Boyden Mon, 27 Apr 2009 20:09:45 +0000 http://www.solove.org/archives/2009/04/copyright-limits.html#comment-43073 This is going on my summer reading list. Two very quick points for now -- I agree with (2), but I think there's an even deeper issue than that, which is that while it's impossible to say now what new technologies will come out tomorrow, it's possible with certainty to say that there will be new technologies tomorrow (hence the common "all media" clause in copyright licenses, which I guess this proposal would make vestigial). Thus, the present value of the copyright, and thus its monetary incentive, will be correspondingly reduced. I would add that this isn't even necessarily about works that are safely in the distant past. Who would have predicted Google Books 10 years ago? Or YouTube 5 years ago? Also, there's an interesting comparison to be made here with how this works under patent law. From my brief skim of the article, it looks like there's a short discussion of the doctrine of equivalents, but the paper's proposal reminds me of the distinction between enablement and infringement -- namely, that the scope of patent claim language will be interpreted for enablement purposes at the time of filing, but for infringement purposes at the time of infringement. I.e., the patent claims essentially grow to keep pace with new technologies, unless (I take it -- my knowledge here is fuzzy) there's something nonobvious about applying that later technology to the invention. The article talks about nonobviousness, but it seems to be in connection with patentability rather than infringement, unless I missed it. This is going on my summer reading list. Two very quick points for now — I agree with (2), but I think there’s an even deeper issue than that, which is that while it’s impossible to say now what new technologies will come out tomorrow, it’s possible with certainty to say that there will be new technologies tomorrow (hence the common “all media” clause in copyright licenses, which I guess this proposal would make vestigial). Thus, the present value of the copyright, and thus its monetary incentive, will be correspondingly reduced.

I would add that this isn’t even necessarily about works that are safely in the distant past. Who would have predicted Google Books 10 years ago? Or YouTube 5 years ago?

Also, there’s an interesting comparison to be made here with how this works under patent law. From my brief skim of the article, it looks like there’s a short discussion of the doctrine of equivalents, but the paper’s proposal reminds me of the distinction between enablement and infringement — namely, that the scope of patent claim language will be interpreted for enablement purposes at the time of filing, but for infringement purposes at the time of infringement. I.e., the patent claims essentially grow to keep pace with new technologies, unless (I take it — my knowledge here is fuzzy) there’s something nonobvious about applying that later technology to the invention. The article talks about nonobviousness, but it seems to be in connection with patentability rather than infringement, unless I missed it.

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