dmv wrote:

The Supremes seem to be saying that intellectual property rights are on par with real property rights. which is all well and good. But does this mean that local governments can condemn the "unused, decaying or underutilized" intellectual property of its citizens and use that
intellectual property for their own - the greater good- economic benefit???

That's a hot little comment there, mixing the major SCOTUS decisions of last week and this one. Could a local government -- or the federal government -- seize material that should be in the public domain, and put it there, provided it shows a plan for why that is good for economic development (neglected otherwise) and pays a reasonable amount for it (off the backlists for 5 decades -- call us to claim your shiny dollar).

Now, lets say you publish a manifesto the government doesn't want you publishing. They claim ED on it (for the public good), seize it, and claim that if you continue to distribute it you've violated their copyright. There you have it. Censorship with no first amendment messyness. You don't even particularly need legislation. The executive branch can just do it.

Decius wrote:

Now, lets say you publish a manifesto the government doesn't want you publishing. They claim ED on it (for the public good), seize it, and claim that if you continue to distribute it you've violated their copyright. There you have it. Censorship with no first amendment messyness. You don't even particularly need legislation. The executive branch can just do it.

Fair enough, although I don't see that working very well. Because the manifesto can be rewritten or reviewed or cited or quoted under the doctrine of fair use, and we haven't gotten rid of that yet. And we haven't gotten rid of the First Amendment, or the ability to challenge ED decisions. You have to strip those away before you can have a useful censorship.

What I was talking about was the material for which there is no financial or person motivation about protecting. The stuff that has been neglected, fallen through the cracks. Right now, professionally you don't want to touch source materials since Mickey that don't have a clean history of origin, for fear of a later suit. ED gets around that -- it has been claimed by the state for public good.

There is a question of jurisdiction.

Fair enough, although I don't see that working very well. Because the manifesto can be rewritten or reviewed or cited or quoted under the doctrine of fair use, and we haven't gotten rid of that yet. And we haven't gotten rid of the First Amendment, or the ability to challenge ED decisions. You have to strip those away before you can have a useful censorship.

I'm not sure it would really work, but its a door you'd open. The court would have to say that the first amendment wins. Furthermore, a large work like a movie or book would be harder to make fair use of if the government was using copyright to control it. I'd much prefer a more limited standard that says the government can use it but only if you aren't useing it and they cannot take any of your rights to it away. But the idea does have merit. You might consider talking to the eldred crowd about it.

Particularly in the case of abandonware a program at the Library of Congress that claims ED on works and rereleases them is unlikely to be challenged in court because abandoned materials are by definition impossible to clear. No one will be able to get standing to prevent you from making use of them. Ultimately such a program would be challenged in some way, but by them it may have sufficiently demostrated its value that people would be sympathetic to it.