Comments on: Dastar decided — incorrectly https://archives.lessig.org/?p=2229 2002-2015 Wed, 04 Jun 2003 20:13:09 +0000 hourly 1 https://wordpress.org/?v=5.7.2 By: Joseph Pietro Riolo https://archives.lessig.org/?p=2229#comment-1560 Wed, 04 Jun 2003 20:13:09 +0000 http://lessig.org/blog/2003/06/dastar_decided_incorrectly.html#comment-1560 Separating moral or author’s rights from the several
exclusive rights as outlined in copyright is a sure way to
kill the public domain. Moreover, the requirement of
attribution will impose limitations on the freedoms of
speech and press. France where the moral rights
are perpetual is a fine example.

Without access to Ray Patterson’s book on copyright
in historical perspective, I really cannot trust his
analysis. The distinction between the authors’
rights and exclusive rights as provided by copyright
is a modern invention. But, even if he is quite correct
on the distinction, it will be a great burden for the
public to provide attribution for many public domain
materials. Just imagine the consequence if people
are required to give attributions for the ideas that
they copy from other people.

The Supreme Court is quite correct in saying that
the right to attribution belongs to the sphere of
copyright and trademark has no business in
muddling the boundaries between trademark,
copyright, and patent.

Joseph Pietro Riolo
<[email protected]>

Public domain notice: I put all of my expressions in this
post in the public domain.

]]> By: Timothy Phillips https://archives.lessig.org/?p=2229#comment-1559 Wed, 04 Jun 2003 14:59:47 +0000 http://lessig.org/blog/2003/06/dastar_decided_incorrectly.html#comment-1559 I disagree with Lawrence on this point. I think that an indefinite author’s right of attribution would indeed violate the constitutional clause empowering Congress to grant copyrights for limited times, and that this principle can be derived from the framers’ free-trade principles. Remember that in the framers’ time the copyright was extremely narrow. It applied only to the book as published. It would have been assumed that a successful book would almost always be associated with its author anyhow. Once the copyright expired, publishers would scramble to offer compting editions, and a selling point in the now-free market for the work would be that the book was Famous Book by Mr. Famous Author.

If the framers thought about problems of attribution of public domain works (I can’t remember encountering this in any of the framers’ writings on copyright or patent, but they might have addressed concerns like this elsewhere) they are likely to have thought that the free market in public domain works, combined with the ongoing work of historians and textual scholars, would sort such matters out. Experience suggests that they would have been right. Two famous Christmas hymns, “Silent Night” and “Hark the Herald Angels Sing”, were widely reprinted without attribution for decades, but in the end their authors were tracked down. If attribution had been a condition which all reprinters had been obliged to fulfill prior to publication, the hymns might never have become famous enough for people to want to know who wrote them.

If it was important to the framers for the market in unabridged editions of books to be completely free after a moderate time, it reasonably follows that impeding the same market by giving the authors’ assigns an open-ended weapon that they might use to harrass competitors should be subject to the same skepticism that open-ended copyright terms were subjected to.

The Dastar opinion’s citation to Eldred looks ironic in light of the actual decision in Eldred’s case, but it seems consistent with the notion of limits on enumerated powers. I only wish that the Court had understood the implications of constitutional limits on Congress’s power when it decided Eldred’s case.

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