Copyright and the Constitution
Way back in the spring of 2001, I took a course in Copyright and the Constitution with Professor Marci Hamilton. The course mainly covered the Supreme Court copyright cases. It was also during this course that I penned my paper stating that the DMCA is Unconstitutional and Lawrence Lessig agreed with some of my reasoning.
Oh right, so what's my point. I'm just happy to have found someone else, while trawling Findlaw, who notices when Congress is trying to enact unconstitutional laws like this one that abrogate the limits of copyright. Lessig also agrees that this is an awful law.
In How the Current Congressional Database Protection Bill Would Go Beyond Current Law, and Why It is Unconstitutional and Misguided, Brandy Karl discusses this nasty little bill that would protect databases that are merely collections of facts. Brandy cites the very important Feist case wherein the Supreme Court "made clear that plain effort does not constitute the originality required by the Constitution's Copyright Clause. Rather, directories and databases must exhibit "some minimal degree of creativity" in order to qualify for copyright protection."
As Brandy states, the Copyright Clause requires original expression and draws the line at protecting facts. Simply stated it is unconstitutional to protect databases that are merely collections of facts. Copyright Clause and Supreme Court cases dating back over a hundred years say so.
Brandy also addresses those who cry that databases fall under the Commerce Clause stating that: "Databases do fall within the Copyright Clause -- and that means that they must be protected to the extent -- and only to the extent -- as other writings." Moreover, no less a copyright scholar than my old Professor William Patry will tell you that: "[t]he public's constitutional right to copy unoriginal material is not limited to cases in which Congress legislates under the Copyright Clause ... the Constitution guarantees the public to protect against any congressional effort to provide rights to creators of unoriginal materials."* He means facts people!
see also: Public Knowledge says Oppose 3261 | Preemption and the Constitution be damned | IPTAblog: "In Assesment Technologies of WI, LLC v. WIREdata, Inc., the Seventh Circuit Court of Appeals held that one may copy and access a copyrighted database in order to extract non-copyrightable public information from that database." [pdf] | Incomplete Rebuttal by Scrivenor's Error | Database Vendors: Dumb, Dying, Reactive, Dangerous... | Hands Off! That Fact Is Mine
Oh right, so what's my point. I'm just happy to have found someone else, while trawling Findlaw, who notices when Congress is trying to enact unconstitutional laws like this one that abrogate the limits of copyright. Lessig also agrees that this is an awful law.
In How the Current Congressional Database Protection Bill Would Go Beyond Current Law, and Why It is Unconstitutional and Misguided, Brandy Karl discusses this nasty little bill that would protect databases that are merely collections of facts. Brandy cites the very important Feist case wherein the Supreme Court "made clear that plain effort does not constitute the originality required by the Constitution's Copyright Clause. Rather, directories and databases must exhibit "some minimal degree of creativity" in order to qualify for copyright protection."
As Brandy states, the Copyright Clause requires original expression and draws the line at protecting facts. Simply stated it is unconstitutional to protect databases that are merely collections of facts. Copyright Clause and Supreme Court cases dating back over a hundred years say so.
Brandy also addresses those who cry that databases fall under the Commerce Clause stating that: "Databases do fall within the Copyright Clause -- and that means that they must be protected to the extent -- and only to the extent -- as other writings." Moreover, no less a copyright scholar than my old Professor William Patry will tell you that: "[t]he public's constitutional right to copy unoriginal material is not limited to cases in which Congress legislates under the Copyright Clause ... the Constitution guarantees the public to protect against any congressional effort to provide rights to creators of unoriginal materials."* He means facts people!
see also: Public Knowledge says Oppose 3261 | Preemption and the Constitution be damned | IPTAblog: "In Assesment Technologies of WI, LLC v. WIREdata, Inc., the Seventh Circuit Court of Appeals held that one may copy and access a copyrighted database in order to extract non-copyrightable public information from that database." [pdf] | Incomplete Rebuttal by Scrivenor's Error | Database Vendors: Dumb, Dying, Reactive, Dangerous... | Hands Off! That Fact Is Mine
