Analog Hole News
So, there’s some bad news. A new discussion draft of a bill to plug the analog hole is going around, and it’s really, really bad policy. Technology-mandate bad. Bad, bad, bad. (Danny O’Brien has more here.)
Note the enormous power shift from the Copyright Office to the Patent and Trademark Office. The bill is to be codified in Title 35, which covers patents, not Title 17, which covers copyrights. And the implementing regulations are to be made by the PTO, not by the Copyright Office. Could this be because this law enacts unlimited-term copyrights for certain uses of certain content, violating the constitution’s “limited times” requirement? Or perhaps it’s because it covers “live events” as well as copyrighted works, violating the constitution’s “writings” requirement. (Such limitations also apply to patents, so the choice of Title 35 over Title 15, if the choice was intended to indicate PTO jurisdiction, is difficult to understand.) It’s an interesting piece of misdirection, but I don’t think it’ll work.
Now, the good news. The Secretary of Commerce and the Attorney General don’t think we need lots of new IP laws:
[United States Secretary of Commerce Carlos] Gutierrez and Attorney General Alberto Gonzales both expressed concerns that passing ‘too many new [IP] laws’ may discourage innovation, and urged the government and industry to rely on education and diplomacy to resolve many of the key issues.
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How does it help to do this in Title 35 rather than Title 17? Doesn’t the Constitution require patents to have limited lifetime? And isn’t this even farther outside the scope of patent than it is outside the scope of copyright?
Comment by Ed Felten — 1 November 2005 @ 14:16
The location of a law within the United States Code provides context, but has no substantive legal weight. Here, the placement in Title 35 truly makes no sense, as far as I can tell. This is not a patent law. Putting it in Title 15 (trademarks) might make a little bit of sense, since in some way we’re protecting the identification of the origin of some good, but I don’t really think so.
It helps a little, maybe, because this bill’s proponents will need to argue that it’s not a copyright law at all, that it has nothing to do with copyrights, that it grants no new copyrights and does not strengthen existing copyrights. They’ll argue that the law is passed not under the Copyright and Patent Clause, but under the Commerce Clause. If it’s in Title 17, it’s a dead giveaway that this is really a copyright law (same dead giveaway as the bootlegging statute, whose drafter, William Patry, wanted it in Title 15, to keep anyone from thinking it was a copyright law).
It also makes some sense to put it in Title 35 (or Title 15) because the bill, as currently drafted, grants the Patent and Trademark Office regulatory authority in a copyright-related area, where it’s never had such authority before. (If I were Marybeth Peters, I’d be rather upset about this proposal.) If it were put in Title 17, the question of why the PTO is given authority to regulate a copyright law would be placed in even starker relief.
I suspect that this has something to do with the attempted copyright power grab by the PTO in the mid-90s, but I don’t know for sure.
Comment by Joe Gratz — 1 November 2005 @ 15:12