Re: [dvd-discuss] [Off-topic] Eldred v. Ashcroft.

[Ernest Miller <ernest.miller(at)aya.yale.edu>]

I don't believe it was ever constitutionally challenged.  Why? That is 
just the way things worked out.  No one ever challenged retroactive 
extension before Eldred either ... doesn't mean Eldred is wrong.

Dean Sanchez wrote:
> Can I assume that there is case law supporting "unlimited" common law copyright?  And, if so, how could it be upheld given the Constitution's explicit limitation?
> 
> -----Original Message-----
> From: Ernest Miller [mailto:ernest.miller@aya.yale.edu]
> Sent: Wednesday, August 07, 2002 12:18 PM
> To: dvd-discuss@eon.law.harvard.edu
> Subject: Re: [dvd-discuss] [Off-topic] Eldred v. Ashcroft.
> 
> 
> Under common law copyright, a private letter is unpublished.  If I give 
> my letter to a University library for their special collections, the 
> letter is still unpublished.  Public access doesn't mean something is 
> "published."  Maybe it should, but it doesn't.  Perhaps trade secret 
> would be a better way for unpublished works to be protected, but that 
> was not what common law copyright said.
> 
> Dean Sanchez wrote:
> 
>>I not sure that I agree with your first assertion.  Could you expand on it?  I think that unpublished works are more akin to trade secrets; you can use it and protect your 'ideas' yourself.  However, once it becomes public, you loss any ability to claim ownership.  If you want to copyright it, then you accept the social contract and the restrictions inherent in that contract.
>>To what type of collections and archives are you referring? Private collections and archives would not be available to the general public.  And what type of public archive would contain unpublished works?  Is not the act of placing a work on public display a type of publishing? If one is unable to quote from a work, then any benefit to the public would of necessity be indirect through the second person of the reviewer.  The public does not benefit directly as it would from a published work.
>>
>>I agree with the second paragraph.  The Constitution expressly indicates that copyright must be of a limited time; do anyone  know where and when the idea of a common law copyright come about?
>>
> 
>