Public Domain? We ain’t got no Public Domain. We don’t need no Public Domain! I don’t have to show you any stinkin’ Public Domain!

Deven Desai

Deven Desai is an associate professor of law and ethics at the Scheller College of Business, Georgia Institute of Technology. He was also the first, and to date, only Academic Research Counsel at Google, Inc., and a Visiting Fellow at Princeton University’s Center for Information Technology Policy. He is a graduate of U.C. Berkeley and the Yale Law School. Professor Desai’s scholarship examines how business interests, new technology, and economic theories shape privacy and intellectual property law and where those arguments explain productivity or where they fail to capture society’s interest in the free flow of information and development. His work has appeared in leading law reviews and journals including the Georgetown Law Journal, Minnesota Law Review, Notre Dame Law Review, Wisconsin Law Review, and U.C. Davis Law Review.

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7 Responses

  1. Brett Bellmore says:

    The question for copyright, which interests me, is this: Supposing we ever beat back the Mouse, and manage to elect a federal legislature and Executive who aren’t bought and paid for by the content industry, are the existing extensions reversible, short of a constitutional amendment? Or are we stuck with all these should have entered the public domain works being in copyright until my 5 year old son is elderly?

  2. Shag from Brookline says:

    The copyright and patent clauses of the Constitution are simply framed. Over the years, Congress (and the Executive) have expanded the monopolies, especially with copyright as Brett points out. If Congress (with the Executive) can expand these monopolies), can they constitutionally cut back without grandfathering vested interests? So I share Brett’s questions. Much of the content today that is protected sucks. Perhaps expanded “fair use” is a means to address grandfathering issues.

  3. Joe says:

    It is but a dissenting opinion, but Justice Stevens argued in response to the majority upholding an extension (Eldred v. Ashcroft):

    It would be manifestly unfair if, after issuing a patent, the Government as a representative of the public sought to modify the bargain by shortening the term of the patent in order to accelerate public access to the invention. The fairness considerations that underlie the constitutional protections against ex post facto laws and laws impairing the obligation of contracts would presumably disable Congress from making such a retroactive change in the public’s bargain with an inventor without providing compensation for the taking.

    If correct, such a vested property interest (if I’m using the term correctly) can be addressed “short of a constitutional amendment” with compensation or perhaps some sort of quid pro quo consent. FWIW, I felt the dissents in the case, particularly Justice Breyer, was correct.

    The expansive terms makes “limited” something of a joke and as Breyer well argues has 1A problems. The idea that children of the author of Lolita, e.g, can fifty years later have a veto on satirical versions of the work (“Lo’s Diary”) or the like is pretty offensive to me on both grounds.

  4. Deven says:

    Short answer, it is unlikely and more difficult to take away the interest once it is given. That said, given the way other property like entitlements are altered, or at least calls to alter or cut them back, I wonder whether arguments from that area would work here. Much of the arguments will turn on how much calls something property and how much one says something is a benefit granted by the government. Charles Reich’s New Property and arguments against it might be a place to start.

  5. Joe says:

    Welfare benefits or the like (“entitlements”) might not be the same as a property interest in a copyright though.

  6. Shag from Brookline says:

    Here’s a link to the Heritage Guide to the Constitution article “Patent and Copyright Clause”:!/articles/1/essays/46/patent-and-copyright-clause

    indicating very little regarding the Clause’s original meaning.

    Federal Trademarks have been established by legislation not under this Clause but under the Commerce Clause. Trademarks are recognized as property.

  7. Deven Desai says:

    Joe I agree. I was free associating about the interesting way these things might be rethought.