Comments on: The No Lobbying Pledge Blog, news, books Tue, 10 Oct 2017 06:01:00 +0000 hourly 1 By: Seth Finkelstein Thu, 05 Jun 2003 04:03:03 +0000 Just a guess, but I strongly suspect that you’ll find that theory argued in the cases which first established “fair use” as a judicial doctrine.
(i.e., I think the anti-fair-use side will have argued that establishing fair-use would be a “taking”)

By: Seth Schoen Thu, 05 Jun 2003 03:38:22 +0000 There is an early 1980s paper or memo by Lawrence Tribe arguing
that diminishing the contours of copyright — once they
have been established by Congress — would be a prohibited
“taking”. The paper was commissioned by MPAA in connection
with the Betamax litigation, and we have a copy of it at
EFF. It was dug out of the depths of a law library by an
intern (my friend Cristina), and it is just horrifying.
The basic claim is that, even if we say that these rights
were created by Congress, they have become a thing which
must not be taken away without compensation. Thus, MPAA
maintained, it was actually contrary to the fifth amendment
to permit uncompensated home recording by Betamax users,
and it would be similarly unconstitutional to shorten or
narrow copyright without paying damages to copyright holders.

That family of claims didn’t work too well in the Betamax era.
But the “diminishing IP rights is a taking” theory continues
to be expressed today in other contexts. Does anyone know
if it can be found anywhere before the Betamax litigation?

By: Seth Finkelstein Wed, 04 Jun 2003 18:14:08 +0000 Thought: Isn’t this just asking to bring back renewal? The $1 is just a distraction. The key argument is rather “If it’s not worth renewing the copyright, let it go away”.

But renewal is gone. Long gone. Won’t PDEA fail for exactly the same reason renewal is gone, since this is really just restoring renewal?

By: Lessig Wed, 04 Jun 2003 17:30:14 +0000 Bets are that retroactive removal of rights fares differently.

By: Aaron Swartz Wed, 04 Jun 2003 17:17:05 +0000 “But as any reform we achieve can apply to future copyrights only”

Why is that? There are lots of retroactive copyright laws and I think the Supreme Court declared them constitutional.

By: Seth Finkelstein Wed, 04 Jun 2003 16:24:08 +0000 This is getting almost funny. Just think how many people would sign a petition to declare “cyberspace” an independent nation.