Interesting post by Mike Masnick of Techdirt, Supreme Court Decision On Guns May Cut Promoting Progress Out Of The Constitution, where he worries that the reasoning in the Second Amendment case Heller--where the prefatory clause "A well regulated Militia, being necessary to the security of a free State" was not held to modify the operative clause, "the right of the people to keep and bear Arms, shall not be infringed"--on the grounds that with similar reasoning, the IP clause might be de-linked from its initial cause "To promote the Progress of Science and useful Arts..." I.e., if the first clause merely states the purpose of the power, but can be ignored, as in Heller, then Congress can still establish copyright and patent even if we can show that they do NOT promote the progress of science and the useful arts.

Well, as I wrote there, Masnick has a reasonable concern, but I think, ultimately, these clauses are different. As this post above notes, in the case of the Second Amendment, the prefatory clause does not limit the operative clause. The limit on federal power is in the operative clause.

In the case of the copyright clause, first, this is a grant of power, not a limit on power. Second, as the poster notes, the power is the power "to promote the progress of science and useful arts" by a certain means, that is, by copyright and patent grants. But the power is clearly linked to "promoting progress." So I think you could probably argue that if IP does not promote the state goals, it's ultra vires. However, I'm afraid the necessary and proper clause would be used to give the feds a lot of leeway.

A full en-banc 11 judge panel was asked to reconsider their previous ill-advised opinion, and a majority managed to come to their senses by an 8 to 5 vote.

In reading the opinion, it is clear what a monstrosity the Copyright Act has become - not just substantively, but in form. What ought to be the simplest of all laws that governs the flow of speech and information for everyone has now reached a level of complexity akin to the tax code.

But if you are patient and are able to get through it, you will understand just how constipated the thinking is of the dissenting judges. (Be sure to read all of the footnotes as well. The majority opinion uses them to eviscerate the reasoning of minority.)

There are so many things wrong with so many issues discussed in the opinion that it is impossible to address in one sitting. I'll only touch upon a few here.

The truly bizarre opinion comes from Judge Birch's dissent, which begins on page 27 of the opinion. Is he really suggesting that if a magazine publisher digitally transfers its pages to a CD-ROM, no copyright violation takes place, but if you then add a search program to the CD-ROM's contents, the photographer who contributed to the magazine then has a valid claim for infringement?? Maybe I'm somehow misreading the opinion, but that is the conclusion I'm drawing from it.

Nope. I didn't misread the opinion. William Patry drew the same conclusion from Birch's original decision. Patry provides additional background on the case in his post. As Judge Burch notes in the 26th footnote to the opinion "Moreover, Professor Patry even refers to me as a 'Luddite' in his recent copyright treatise edition."

In my view, that is a rather charitable word to describe Judge Birch regarding his view of copyright law.

Also be sure to check out his views on pages 72-73 of the opinion that essentially states that it is actually OK for publishers to store historical archives, just as long as access to them is limited to small, elite group of "researchers and scholars" - not the general public.

Judge Anderson's dissent isn't quite as bizarre, but that's not saying all that much. It is still so obviously wrongheaded that it is painful to read. His reasoning can be summed up in the example he cites on page 77 of the opinion which I will paraphrase as such -

Photographer X contributed a photograph to National Geographic Magazine for its March 2000 issue on Africa. He retains copyright in the individual photograph, but National Geographic has the right to reproduce it as part of its 'collective work' - meaning its magazine issue.

Years later, National Geographic decides to publish an anthology of all its past issues that dealt only with the subject of Africa, omitting the issues on other subjects. As part of this anthology, the March 2000 issue was reproduced - bound in the volume along with all of the other issues pertaining to Africa.

Anderson claims that if National Geographic merely re-printed the March 2000 issue as a stand-alone copy, there would be no copyright problem. But by placing it in the context of a larger anthology of Africa, Photographer X now miraculously has a claim for copyright infringement - even though X's photograph is reproduced within the exact same context within the issue itself. [The majority opinion points out in footnote 18 that Anderson's example should indeed be protected activity.)

What the hell is going on in that Circuit?? I realize that the majority thankfully won out in this case, but somebody still needs to switch out the Kool-Aide over there.

The musician Gregg Gillis A K A Girl Talk is making a creative career by borrowing music from established artists. His latest album is a creative compilation of 300 songs. So far he hasn't been sued for copyright "infringement," but that might be due to the fact that his best selling work has sold only 20,000 copies, not enough to rile up the copyright capos. (The usually voluble RIAA didn't comment for the story.)

Fair use is the name of his game. He defends his modus operandi by saying that he what he does is "to take something so familiar and twist it into a new entity." He slices and dices old music so that it becomes his new creation. Game over for copyright.

Here is the article from the Wall Street Journal, June 27, p. B7.

One of the big issues with copyright is that it stifles innovation. I was reminded of this again yesterday, when I saw a play, The Mystery of Irma Vep link here. It was written by Charles Ludlam who, the program notes observe, "Upon realizing that his teachers, and the commercial theater, wanted him to subscribe to the Stanislavskian method of behaving in a 'civilized manner in a room, not to do anything extraordinary,' Ludlam and a group of like-minded artists founded The Ridiculous Theatrical Company.... He quickly became famous for gleefully ransacking other genres and works.... Everything was fair game,... drawing on great works of literature as well as movies, plays, television ads, songs, comic books, or 'something shouted in the street' for all twenty-nine of his plays." Irma is a marvel of casting and direction, with two men playing all seven parts, including those of three women. Imagine the rapid fire costume changes, since both actors had to be onstage together most of the time.

The audience laughed their heads off. What a loss if copyright had interfered.

Variety reports here on how copyrights have actually prevented the classic Fugitive television program from being re-distributed in its original form.

One of the reasons I tend to dismiss the notion of 'moral rights' for artists is because of how it is selectively enforced (in addition to the obvious dangers of creating a mutant form of 'super-copyright). The Fugitive is a clear example. If the concept applies to painted canvases, then why not television shows?

Of course this is not a new phenomenon. My own personal experience (and confession) with the problem can be found:

Here and here and here.

You have probably never heard of the Naked Cowboy who parades around the streets of New York in his underpants, cowboy boots and hat, playing a guitar and singing. You should because it once again demonstrates the absurdity of IP law. The Mars candy people and its ad agency created billboards featuring a naked cowboy link here and here. He sued for invasion of privacy and breach of his trademark. A New York court has thrown out the privacy charge, which seems almost logical, since the cowboy's strutting is clearly not private. Some such "street artists" might even pay for the publicity.

But the trademark invasion remains to be adjudicated. Trial is set for high noon on July 11. I'll bet you can't wait to hear how it turns out. You can read the 23 page opinion link here.link here

In the endless saga about royalties from radio stations paid out to artists, Wired reports that a vote on this is expected on Thursday on this, and the two main opponents have been exchanging symbolic gifts in the lead up.

The question is whether radio stations provide a service to artists by promoting their wares on the air, or whether they are exploiting them. Seeing (or rather listening) that radio stations rarely mention who the artist is, the latter would seem to hold. But given that artists often give songs to stations for them to be played, one would argue the opposite. And if the station actually buys the CD, wouldn't it be allowed to play it like a library allows patrons to read its books?

Wired reports on this astonishing claim, and provides a copy of the MPAA's legal brief to back it up.

I may be wrong on this, but I believe you cannot insure yourself against acting illegally. In that light, I interpret the following court decision as determining that software piracy is legal.

UNIK Associates was in the business of reselling software to businesses. Symantec sued and won a case against UNIK, alleging that it pirated its software products. UNIK then sued its insurance company to make it pay the fine, and has just won. The court argues that the policy covered copyright and trademark infringements.

The New York Times computer columnist, David Pogue, also writes books on software. He recently published an article complaining that he had given the PDF of one of his books to a few blind people as an act of generosity, and the PDF then appeared all over the internet link here. His column produced a deluge of comment, both favorable and not link here. Commenters suggested making the book for sale in downloadable form and others in free form, arguing that might actually increase sales of the hard copy. Another suggested a test using one of his older texts. Pogue has now agreed to such a test, selling a downloadable PDF, though not the free version.

The free downloadable form of publication is one that readers of this blog will find familiar, since two of its authors have published texts in that form, the most recent of which is available here . We will report the outcome of Pogue's experiment as it becomes available. A lot of us still like to have hard-copy reference books in hand as well as an online copy as we work on our computers so it will be an interesting experiment.