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November 1, 2012
David Post on Aero
David Post is at it again. He's one of the best I know at calling attention to IP-relevant cases that aren't getting mainstream attention
. Earlier this week he blogged (at Volokh Conspiracy) about a new amicus brief
filed in opposition to the Cartel's attempt to shut Aero down
As I noted in that September blog piece Ralph Oman, a former Register of Copyrights, had filed a bizarre amicus brief in the case, which asserted that
...when the law is ambiguous or silent on the issue at bar, the courts should let those who want to market new technologies carry the burden of persuasion that a new exception to the broad rights enacted by Congress should be established.
In English, this means that anything not expressly permitted should be forbidden (by copyright law at least) and as Post puts it, bluntly, "That is flat-out wrong."
The brief, authored by Post and signed by 34 law professors, argues that Oman is not just incorrect, but is trying to turn the entire principle of law on its head. Congress must, the brief states, balance competing needs but where it has not definitively spoken there is no justification for a court to make a restrictive and one-sided ruling such as Oman advocates that would shut down whole new sectors of industry just because they lack governmental pre-approval.
Post (and the brief) appear to be advocating for a strong form of what I've called the Breyer Test (after Golan) in that he too believes the authorial monopoly is there not so authors can profit but because allowing authors to profit increases "...the creation and the availability of creative works to the public." Now if we could just get Congress to write that into copyright law things might get a whole lot better.
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