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October 3, 2004
Click Here to Allow Unlawful Restraint of Trade
John T. Mitchell, who writes beautifully about the damage that code + law (PDF) can do to the public's side of the copyright bargain, has a short-but-powerful response to the BNetD decision (PDF) over @ Freedom-to-Tinker:
When a copyright owner uses the copyright monopoly as leverage to extract an enlargement of its rights even further by conditioning the license upon a waiver of rights granted by law, it thumbs its nose at Congress and enters an agreement in restraint of trade.
In effect, Judge Shaw has ruled that none of the limitations Congress placed upon copyrights (Sections 107-122) are worth the paper they are written on if the copyright owner can get the public to agree to give them up as payment for access to the works.
A travesty, and one that must be appealed.
Speaking of limitations on copyright, Derek Slater brings news
that fellow Berkman
-ite Dotan Oliar has written a new paper
(PDF) on the roots of the Copyright Clause, revealing that (surprise) "promote the progress of science and useful arts" does indeed represent a limit to Congress's power to grant intellectual property rights. Which means, of course, that the courts ought to enforce this limitation. According to Dotan, this requires that we develop a "concept of progress for the Clause" -- and he explores several ways that the courts could do so.
Sounds fascinating. Thanks, Derek.
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