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August 23, 2004
Call Me Dick
So suggests the Honorable Richard A. Posner of the U.S. Seventh Circuit Court of Appeals, now guest-blogging over at Lessig Blog.
Judge...Professor...Dick Posner suggests that those interested in learning more about him consult his home page at the University of Chicago, but there are a few other spots Copyfight readers might want to visit whilst making heads and/or tails of his (blog) opinions:
- 20 Questions with Richard Posner, where he names the Aimster opinion [PDF] as one of his all-time favorites
- Grokster, Intent, and Cert, in which Derek Slater grapples with C.E. Petit over the important differences between the Napster, Aimster, and Grokster opinions, and, interestingly, argues that they don't amount to much -- and that as a consequence, the Supreme Court may refuse to grant cert in a Grokster appeal:
The narrow holding [in Aimster] is that, to meet the Sony standard, something more than mere speculation about non-infringing uses is required. That's fairly consistent with Grokster and Napster and overall not that big a deal. Looked at that way, there is no circuit split. Posner's broader interpretation of Sony was irrelevant to the Aimster case, and thus its conflict with Grokster may also be irrelevant.
Unfortunately, Posner cannot discuss Grokster
. But there's a lot he can and does say about another important battle in the copyfight: the effort to undo the damage the CTEA and Eldred decision
"Larry Lessig from time to time flagellates himself about losing the Eldred case in the Supreme Court. He shouldn't; it was unwinnable for a host of reasons," writes Posner. "All this said, the net effects of the Act and therefore of the Eldred decision are probably bad. But the worst of them should be remediable fairly easily."
Easily, you say? Pray tell, how?
Posner's -- Dick's -- answer comes in two parts (so far): Licensing and Fair Use and Fair Use and Licensing. In part one, he argues that the main problem with copyright-forever-less-a-day is that it raises the transaction costs for publishing old works. In part two, he suggests that a form of fair use codified could save the day:
[It] should be considered fair use to copy an old work if the copyright owner hasn't taken reasonable steps to provide notice of his continued rights, as by entering his name and address in a copyright registry...Then if an Eldred wanted to publish some old work, he would consult the registry or registries and if no owner was listed (which would usually be the case, because most old works have no commercial value and so their owners won't bother to try to keep them from falling into the public domain), he could publish it without a license.
An interesting alternative to the burden shift proposed by the Public Domain Enhancement Act
, which (among other things) asks copyright holders to pay a very small fee after 50 years if they wish to retain copyright. I wonder what Larry made/makes of it?
Oops -- didn't see Ernie's previous post here @ Copyfight; do check it out, below.
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