I found this in Bartlett's when I was confirming the "sic vos non vobis" lines yesterday:
When I loved you and you loved me,
You were the sky, the sea, the tree.
Now skies are skies, and seas are seas,
And trees and brown and they are trees.(Charles A. Wagner)
I went to Sumana's party and also ate at La Note. We played a game called "Before I Kill You, Mr. Bond..." from a company in Seattle called Cheapass Games. Maybe I should try to make up a game.
A group called CFIF wrote an essay earlier this summer claiming that compulsory licensing violates the takings clause ("'Taking' Away Music Copyrights: Does Compulsory Licensing of Music on the Internet Violate the Fifth Amendment's Takings Clause?", by Laurie Messerly). They just mentioned it in connection with the MOCA bill.
This argument is unbelievably ridiculous. Fred found a Cato piece ("Musical Mandates: Must the Pop Music Industry Submit to Compulsory Licensing?", by Wayne Crews) which makes a similar argument.
It's not that I support any particular compulsory licensing proposal, it's that I'm worried about the implications of generalized opposition to compulsory licensing as a concept. The implication of "'Taking' Away Music Copyrights" is that Congress is not allowed to weaken or scale back copyright law!
I think some people proposed that Eric Eldred ought to make fifth amendment takings arguments in challenging the Copyright Term Extension Act -- in particular, that Congress was engaged in a taking when it extended copyright, not when it failed to extend copyright! (I don't think he actually made that argument, but he did make this interesting argument about tide-waters.)
Think for a moment about Messerly's argument. When Congress enacted the first U.S. copyright law, it clearly did not violate the Constitution (ignoring for the moment the historically interesting argument that all copyright law violates the first amendment). But now once that law had been passed -- per Messerly -- it could no longer be repealed! Denying copyright holders their right to dispose of their "intellectual property" would consistute a taking; thereafter, the fifth amendment's takings clause would have to act as a ratchet, forcing the provisions of copyright law to grow ever stricter, not allowing the least diminution.
What will it take to convince people that copyrights are not property?
I said that "it's not that I support any particular compulsory licensing proposal" -- and it's true that that's not why I'm worried about the anti-compulsory-licensing arguments. But I do seem to think that it's bad that works can go out of print simply because of copyright.
A question: what would a successful reform aimed at preventing works from going out of print look like? What would it do to the used book business?
Contact: Seth David Schoen
