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1/19 quote-value of public domain-overprotecting

19 Jan 00 - 11:56 AM (#165265)
Subject: 1/19 quote on value of public domain
From: T in Oklahoma (Okiemockbird)

"Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain...

Intellectual property rights aren't free: They're imposed at the expense of future creators and of the public at large...

This is why intellectual property law is full of careful balances between what's set aside for the owner and what's left in the public domain for the rest of us: The relatively short life of patents; the longer, but finite, life of copyrights; copyright's idea-expression dichotomy; the fair use doctrine; the prohibition on copyrighting facts; the compulsory license of television broadcasts and musical compositions....All of these diminish an intellectual property owner's rights. All let the public use something created by someone else. But all are necessary to maintain a free environment in which creative genius can flourish."

--White v. Samsung Electronics America, Inc., 26 USPQ.2d 1362, at 1364, 1366. (Kozinski, J., dissenting from denial of rehearing en banc).


13 Jan 07 - 02:39 PM (#1935420)
Subject: RE: 1/19 quote on value of public domain
From: Joe Offer

I just came across these. They're all very interesting, all worth a look and a response. I added a keyword to each thread title, to make them more distinguishable.

13 Jan 07 - 08:00 PM (#1935727)
Subject: RE: 1/19 quote-value of public domain-overprotecti
From: Celtaddict

And while you think on this, consider Spider Robinson's story
Melancholy Elephants
Melancholy Elephants

13 Jan 07 - 09:19 PM (#1935789)
Subject: RE: 1/19 quote-value of public domain-overprotecting
From: Arkie

Two thought provoking items about a serious subject.   Thanks Joe. There is certainly a positive value in public domain and limited copyright. I am amazed at the wisdom of the framers of the Constitution of the United States. It seems that one time in the history of this country there were those who thought of the public good and the future public good. Copyrights are just one areas addressed. Although people talk of protecting the artist and creator through copyrights the entity that prospers the most and many times at the expense of the creater is the corporate entity that purchases the copyright.   If the real intent was to protect the creator, ownership of the creation would revert back to the creator after a period of time.

14 Jan 07 - 05:34 PM (#1936578)
Subject: RE: 1/19 quote-value of public domain-overprotecting
From: GUEST,x

but the way the system has been subverted and perverted, every time it looks like Mickey Mouse is going to go into the public domain, a law is passed extending copyright another couple of decades. Kinda like Caesar Augustus, who would never take the title of Emperor, but kept being reappointed for another ten year term as Absolute Dictator.
I totally agree with Spider Robin's story and have recommended it to friends.

14 Jan 07 - 06:24 PM (#1936638)
Subject: RE: 1/19 quote-value of public domain-overprotecting
From: Richard Bridge

The story includes at least two incorrect assumptions about copyright.

And I speak on this as the lawyer who was, frankly, the engine-room of the campaign in the UK for the protection of format rights.

14 Jan 07 - 09:23 PM (#1936783)
Subject: RE: 1/19 quote-value of public domain-overprotecting
From: Arkie

What are the incorrect assumptions?

14 Jan 07 - 11:06 PM (#1936863)
Subject: RE: 1/19 quote-value of public domain-overprotecting
From: Richard Bridge

The two biggest (IMHO) are:

1. A simplistic view of the issue itself simplistically called the "idea/expression" dichotomy. It has pretty well always been the case that the taking of exact language is not necessary for there to be copyright infringment. Otherwise for example a silent film could not have infringed the copyright in a book, nor could a translation into a different language ever have infringed copyright.

2. Since the USA joined the Berne convention, even in the USA (which before then was in international terms increasingly isolated in the way it treated copyright) there has been no possibility of registration being necessary for the subsistence of copyright and therefore no possibility of a work being examined by examiners before being admitted to registration and thus copyright.

Another fallacy is that politicians stay bought!

It is I think nonetheless very arguable that the duration of coypright should not be excessive.   Argument should not however be based on false premises or dishonest presentations, lest we all become merely politicians.

15 Jan 07 - 03:45 AM (#1936983)
Subject: RE: 1/19 quote-value of public domain-overprotecting
From: Muttley

An interesting anecdote to the above discussion comes from Australia.

First, allow me the indulgence of a small history lesson.

For hundreds of years, if farmers wished to 'water their stock' or 'irrigate a plot' in a limited fashion (special plants etc) or if a vendor wished to 'distrubute clean drinking water' (as was a profession in the early days of Melbourne Victoria - can't speak for other major cities.
Then the process involved loading a wagon with a bunch of 'hogshead' barrels and delivering them to their required destination / customers / recipients.

In the 1880's, a foundry operator in the country town of Shepparton in Victoria devised a 180-gallon galvanised-steel tank with cast iron ends, one one of which was fitted with a tap. When the barrel rusted, it was a simple matter to bring in the tank and heat the ends, remove the "wheel-rim" exterior band, remove the rusted barrel and replace it with a pre-fabbed barrel and replace the ends. The whole deal was mounted on a timber frame which attached to an axle and wheels and could be horse drawn as a unit.
Fill the barrel via the hatch in the end at the top and away you go - less effort, less work, less pain.

This was done by one John Furphy and thus the "Furphy Tank" was born and still exists to this day. It was, reputedly; The first of its kind in the world and has spawned hundreds of variational descendants around the world (sort of like the Combine Harvester - invented here, but the patent bought cheap from another fabricator in rural New South Wales)

John Furphy was a Temperance Advocate, a scholar and a perfectionist. The cast iron ends of his mobile water cart were blank and unadorned except for a small 'brand' mark (embossed as part of the casting at about "one O'Clock) for the first few years. Later (about 1890) he put the name "FURPHY WATER CART" in raised letters across the the diameter of each end. By the turn of the century he had added his personal 'credo' at the bottom of each end in the form of a four-line poem - a 'quatrain'. It read:

Good, Better, Best
Never Let It Rest
Until Your Good Is Better,
Abd Your Better Best

FAST FORWARD 90 - 100 years and the Furphy foundry was a little 'worse for wear' in the prosperity stakes: They were close to closing their doors forever.

Around the mid-'80's Telecom, the Telecommunications giant here in Australia marketed an add promoting themselves. (They had to. THe market had been "thrown open" and there were now a couple of 'up-and-coming' new telecommunications companies vying for the 'telephone dollar in Australia. One, Optus, was a serious threat - it is, today, Telecom's biggest competitor. (others fell by the wayside and have been replaced by more solid telecommunications alternatives from overseas - Virgin, Vodaphone, Three etc).
However, Telecom was, for the first time in its history, 'feeling the heat'.

The brilliant ad campaign featured all the progressive stuff Telecom was doing for Australia - extended networks to the outback, sponsoring major sports, upgrading existing systems and computerising them etc.

The ads ended with a passionate choral singing of:

"Good, better, best, WE will never rest; 'Til OUR good is better, and OUR better best".

They assumed that the saying, to which they simply added a tune and changed a couple of pronouns, was public domain - a common saying. Unfortunately, no-one advised Telecom's American boss of the day that the saying was VERY well-known; especially in the rural sector, where the Furphy Tank is a ubiquitous item and Furhy Foundry sued Telecom Australia for breach of intellectual property and won.

With their settlement, Furhy's refinanced, bought out their debtors, retooled, added in a major galvanising plant and extra facilities, computerised their machinery - and all without having to lay off staff (in fact their employee base GREW !!!)

As a result, the Furphy company still exists and is stronger than ever.

Like all laws the defense of 'Intellectual Property' relies on good common sense which, in the Legal world, seems to go on frequent vacation. Still, I think THIS law is valuable in its ability to protect the small creative muses of this world.


PS -If you've ever heard of a rumour being referred to as a 'Furphy' - that's another piece of history.

Australia supplied Furphy Tanks to the Western Front in World War One to supply forward positions with 'clean' water for cooking and drinking. The carts would travel between a set number of posts abd originate from common depots. Thus any 'Front-line' news, stories, rumours, hearsays etc would be passed on between carters and from there to the soldiers who would collect their water rations a few hundred yards behind the forward posts - thus soldiers would hear the "news" from the carters and from other blokes further up or down the line. Anything which proved unfounded or sounded unlikely was then referred to as a "Furphy" - a news item of dubious origin: a rumour.

Hope you enjoyed, Mutt

15 Jan 07 - 11:27 AM (#1937321)
Subject: RE: 1/19 quote-value of public domain-overprotecting
From: Arkie

Thanks Richard. I agree that arguments should be based upon truth.

15 Jan 07 - 06:23 PM (#1937693)
Subject: RE: 1/19 quote-value of public domain-overprotecting
From: Richard Bridge

RE: Furphy.

When did the writer of the original slogan die? Copyright, in the 80s, was life of author +50 years and is now life + 70 (and to 31 Dec). It looks as if that action might have been based on passing off rather than infringment of copyright. Passing off depends on a reputation - but a current reputation - so that the ultimate consumers, while not needing to know the name or identity of the plaintiff would be (or be likely to be) misled into thinking that the goods or services of the defendant were those of (or authorised or approved by) the plaintiff.

Once upon a time there would have had to be a"common field of endeavour" but I think Australia was the first common-law jurisdiction to abandon that rule.

Of course it could have been a trade mark action, if the Furphy slogan was registered as a trade mark and had been renewed all the time.

More info please - that is interesting.