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Against Monopoly

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Monopoly corrupts. Absolute monopoly corrupts absolutely.





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Dissent of the day

The U.S. Federal Circuit, which usually goes out of its way to unjustly expand the contours of patent law, has issued a typically outrageous decision holding that a U.S. stamp which depicts a view of a public Korean War memorial violates the copyright of the sculptor who designed it.

The decision brought a strong dissent from Judge Pauline Newman who wrote:

The Korean War Veterans Memorial is a work of public art and a national monument. It was authorized by Congress, installed on the National Mall, and paid for by appropriated funds. My colleagues on this panel now hold that the persons who produced this public monument for the United States, under a contract which requires that copyright is in the United States, can nonetheless require the United States to pay damages for copyright infringement based on use of a photograph of the Memorial in snow on a postage stamp. This holding is contrary to the contract provisions, contrary to statute for works done in the service of the United States, contrary to copyright law, and contrary to national policy governing access to public monuments. I respectfully dissent from the court's holding that the United States is liable for infringement of an improperly obtained and unlawfully enforced copyright.

Read the full PDF decision (and dissent) here.


Comments

I would not read too much into Judge Newman's (a patent lawyer) dissent.

Whereas the majority opinion was predicated on an examination of "fair use", Judge Newman's dissent was predicated upon contract law pertaining to federal procurements.

A particularly egregious court ruling. It makes at least 2 errors:

1. As the dissenting judge pointed out, it was a work for hire commissioned by the party accused of infringement. Ergo, that party would hold the copyright it is being accused of infringing. Can one infringe one's own copyright? Even if so, why would a third party (and after completing a commissioned work, the artist is a third party) have standing to sue or to collect damages?

2. Any copyright that is acquired by the federal government is automatically voided; the work falls immediately into the public domain. So there is no copyright to have been infringed anyway.


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