tag:blogger.com,1999:blog-20803105.post197578503463348543..comments2024-03-23T13:09:54.464-04:00Comments on EXCESS COPYRIGHT: Canadian Copyright Kerfuffle – How NOT to Fix Copyright Law? (with apologies to Bill Patry)Howard Knopfhttp://www.blogger.com/profile/18321190334597129416noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-20803105.post-72219564394068163812012-04-25T12:33:55.799-04:002012-04-25T12:33:55.799-04:00William Patry's book has several great points....William Patry's book has several great points. I have a great deal of respect for him since he is one of the marginal who are fearless enough to answer the most basic question: why do we have copyright laws at all. William Patry aptly throws light on numerous myths behind today's popular rationalization on copyright that it is believed to balance the welfare of the originators with the interests of the society. <br /><br />Because Patry's book is based on erroneous conjectures, the big issue is, it consequently it concludes with extremely dangerous proposals. He deems that copyright laws are not about giving originators the right to c how their works are utilized. Patry believes that the function of copyright laws is to guarantee the maximum benefits to the public while giving the creators the least minimum that would promote creativity. <br /><br />In my critique, How Not To Fix Copyright - My Response to William Patry (http://mincovlaw.com/blog-post/how_not_to_fix_copyright) , I talk about the errors in Patry's approach and give a lot of detailed commentaries to extracts from his book.Andrei Mincovhttp://mincovlaw.com/noreply@blogger.comtag:blogger.com,1999:blog-20803105.post-895056513184136162012-03-19T16:34:35.918-04:002012-03-19T16:34:35.918-04:00Dan:
I had really hoped to retire from this threa...Dan:<br /><br />I had really hoped to retire from this thread, since it is being handled so thoroughly by you, Ariel and Bill Patry. But I am pleased to post your comment. That said, I will respond very briefly – hopefully not be heard from again in this context.<br /><br />As you rightly noted, intervener factums are strictly limited to 10 pages. This truly focuses the mind and requires difficult and decisive triage of issues. At times, these limits pose a difficult challenge: how to deal with complex issues within those limitations and still provide enough detail and, in Judge Posner’s words, all “relevant and dispositive” case law to be of the best possible assistance to the Court. <br /><br />Ariel and I thought it unnecessary to deal with “effect on the market” for several reasons. Among them was the fact that it was clear that the Appellant would deal with the evidentiary issue and, above all, that the Court had ruled on the legal status of that factor quite explicitly and definitively in 2004 in CCH v. LSUC at para. 59:<br /><br />“59. Finally, the effect of the dealing on the work is another factor warranting consideration when courts are determining whether dealing is fair. If the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair. Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair. See, for example, Pro Sieben Media AG v. Carlton UK Television Ltd., [1999] F.S.R. 610 (C.A.), per Robert Walker L.J.”<br /><br />Ariel and I referred to Campbell on a point completely unrelated to the “effect on the market” issue. As Ariel said in a comment earlier on this thread:<br /><br /> “We cited Campbell once, to support the proposition that section 107 of the US Copyright Act, which codified the common law fair use doctrine, was not intended to restrict or narrow the doctrine of fair dealing or to limit the role of the judiciary in applying, developing, and adjusting it to new circumstances."<br /><br />“You’re absolutely correct that our factum doesn’t even CITE Harper & Row, because there was no need to cite it. Harper & Row says essentially the same thing about the point that we addressed in the factum:” [Ariel provides a quote from Harper] <br /><br />“Since there is no inconsistency or tension between Harper & Row with respect to this point, and since Campbell is more recent than Harper & Row, there is nothing ostrich-like or misdescriptive in mentioning the one but not the other.”<br /><br />So, there was no reason whatsoever for us to refer to Harper & Row, which preceded Campbell by nine years in any event. In your statement about the importance of the “effect on the market” factor, the only case that you and Barry relied on was Harper & Row. You mentioned Campbell in two footnotes related to other questions, but not regarding the “effect on the market” issue, and although you included Campbell in your Book of Authorities, the excerpt did not include pages 577 and 578, which deal with “effect on the market” and where the “rejection”, as Bill Patry puts it, of Harper & Row is to be found. Ariel and I did include those two pages, but only because they filled out the context of the passage that we were citing to.<br /><br />For readers of this thread (if there are any left) who may be unaware of how Supreme Court of Canada hearings work, intervener factums are all due at the same time. This means that interveners do not know what other interveners will argue in their factums, and they have no way to respond to one another, except potentially in oral argument, if such argument is permitted and time and the Court so allow.<br /><br />Anyway, fascinating as this thread may be, I think that we have more than worn it out.<br /><br />HPKHoward Knopfhttps://www.blogger.com/profile/18321190334597129416noreply@blogger.comtag:blogger.com,1999:blog-20803105.post-43323511571938565292012-03-19T12:29:23.689-04:002012-03-19T12:29:23.689-04:00Howard,
I am delighted that you have decided to r...Howard,<br /><br />I am delighted that you have decided to re-engage in this debate. Indeed, I expected no less from you. However, I am afraid you have once again engaged in a highly selective treatment of the debate that is now ricocheting between three sites. <br /><br />In particular, you give short shrift to my reply on Ariel Katz’s blog as to the contents of our factum and authorities before the Supreme Court. Some, but not all, of that reply, stated as follows: <br /><br />"I want to respond directly to your contention that our Supreme Court factum somehow ignored the Campbell case or misstated U.S. law.<br />Intervener factums, particularly ones that are limited to 10 pages by order of the Supreme Court, are necessarily succinct. But citations and authorities to the Court permit it to evaluate and weigh all of the relevant authorities. We included ALL of the leading U.S. Supreme Court cases on s. 107 of the Copyright Act and cited to the relevant portions of Campbell twice, at paras. 20 and 27. We put Campbell directly into our Book of Authorities. We included Nimmer on Copyright, the most-cited copyright authority in U.S. law, which comprehensively cites and discusses all of the broader appellate case law. It is irresponsible to suggest that we failed to draw the full spectrum of case law to the Court’s attention."<br /><br />I also note that you have omitted mention of my discussion of the factum and authorities put forward by you and Professor Katz, which laid the Campbell case before the U.S. Supreme Court but did not include the Harper & Row case, which contained a statement of law you clearly don’t like. Hence my suggestion that people in glass houses shouldn’t throw stones.<br /><br />Last, for those who care to consider both sides of this issue, I have posted a lengthy reply to Mr. Patry’s comments, which reviews at length how Harper & Row and Campbell stand together as authoritative statements of the U.S. Supreme Court. It may be found at http://www.barrysookman.com/2012/03/19/a-reply-to-william-patry/Dan Glovernoreply@blogger.com