Richard Posner wraps up one week of guest blogging at Larry Lessig's site with this (among other interesting observations):
"I started with IP, where the underlying uncertainty is that we just don’t know the social value of creating enforceable legal rights in intellectual property. In the case of physical property, we know or think we know that something like the present definition of rights, including such limited exceptions to private property rights as eminent domain, adverse possession, trespass by necessity (e.g., driving onto someone’s lawn in order to avoid a collision with another vehicle), forfeiture for nonpayment of taxes, rights of business invitees, etc., is economically optimal. We don’t have any grounds for similar confidence with respect to IP rights. To abolish them altogether would almost certainly be inefficient; likewise to expand them much beyond their present scope; but that leaves a vast middle area. I think there are some reforms that can be advocated without worrying too much about fundamental questions, like allowing unauthorized copying of old copyrighted works that have little or no commercial value, as evidenced by failure to register them; and maybe that’s where we should concentrate our efforts."
The first part about uncertainty is exactly the position I took in my book "Grenzen des Patentwesens". We don't know if the benefits of IP exceed the costs at any given level of protection.
And the second part about concentrating the efforts on allowing copying of old copyrighted works with little or no commercial value fits nicely with my proposal of a "no sale doctrine", that is awarding monetary damages for copyright violations only if the copyright holder is selling the work himself, and not if he doesn't (no sale). As I pointed out already in discussing Lessig's latest book, current American law already states in 17 USC 412 that statutory damages and attorney's fees can only be awarded when the work is already registered or registration is made within three months after publication.
That seems to be close to both the "no sale doctrine" and even closer to asking holders of valuable copyrights to register them, as Lessig and Posner do.
Posted by Karl-Friedrich Lenz at August 31, 2004 11:30 AM | TrackBack