Wednesday, July 31, 2002

Andy writes:

Professor Lessig's mishandling of the Eldred v. Ashcroft copyright case, now pending before the Supreme Court, has been nagging me for quite a while. ... I recently concluded that Lessig's approach is a very liberal, even communistic, view of property. His emphasis on the "commons", which is an area where private property is prohibited, illustrates that. (We argue that limited government requires limited copyrights.) Now I see a writing by a University of Wisconsin (Madison) professor that confirms my analysis.

When Lessig talks about "commons", he is not talking about property that is commonly owned, like a public park. He is referring to stuff being in the public domain. Ie, free, and not owned by anyone. This author says, "Copyright is not about 'property' as commonly understood." I cannot agree with this. Having information in the public domain is great, and should be the end result of all information. But in the meantime, original works should be treated as property.

Lessig is a smart guy, and much better than other well-known law profs, but he has bungled the Eldred case so far. Only one of three judges sided with him on the appellate panel, and that was only because the judge was persuaded by an amicus argument that Lessig eschewed.

Andy says:

I fail to see any distinction between "public park" and "public domain." Lessig's approach is for communal property. I don't see any other interpretation of it. Our approach favors private property, but limited govt grants of property rights.

The difference is that a public park requires some maintenance, rules, and policing. Or its value will erode. It is owned by the city or some other entity that exercises authority over it.

Hamlet is in the public domain. No one owns it. It is not property, communal or otherwise. No one has the right to police usage of Hamlet. Lessig's approach is to have more goods in the public domain.

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