To say that copyright should trump social concerns misses the fact that, in Anglo-American law, copyright is entirely a matter of social policy. The authorization given to Congress to pass patent and copyright laws in the Constitution explicitly ties that authorization to a social purpose -- to promote the progress of science and useful art. Presumably laws that do not enact this social purpose are outside the scope of congressional authority. This follows logically from the English case called Donaldson v. Beckett from 1774, in which the House of Lords ruled that copyright was entirely a matter of statutory law, not a natural right that could survive even after that statutory grant expired. The U.S. Supreme Court affirmed this principle in the case of Wheaton v. Peters (1834).
As much as authors, and, more frequently, publishers, would like to assert that copyright should trump social policy, it has always been a simple matter of social bargaining in the U.S. and U.K. -- grant a limited monopoly in order to achieve a specified communal purpose. One of my favorite British authors, Matthew Arnold, captured this social negotiation nicely in his 1882 essay on copyright:
"An author has no natural right to a property in his production, but then neither has he a natural right to anything whatever which he may produce or acquire. What is true is that a man has a strong instinct making him seek to possess what he has produced or acquired, to have it at his disposal; that he finds pleasure in so having it, and finds profit. The instinct is natural and salutary, although it may be over-stimulated and indulged to excess. One of the first objects of men, in combining themselves in society, has been to afford to the individual, in his pursuit of this instinct, the sanction and assistance of the laws, so far as may be consistent with the general advantage of the community."
Kevin L. Smith, M.L.S., J.D.
Director of Scholarly Communications
Duke University, Perkins Library
P.O. Box 90193
Durham, NC 27708
919-668-4451
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-----Original Message-----
From: LibLicense-L Discussion Forum [mailto:[log in to unmask]] On Behalf Of LIBLICENSE
Sent: Monday, January 30, 2012 11:05 PM
To: [log in to unmask]
Subject: Re: Harper Collins E-books Case
From: Joseph Esposito <[log in to unmask]>
Date: Fri, 27 Jan 2012 22:44:28 -0800
Well, maybe so, but I would think (and hope) that the matter of copyright trumps the social concerns you appear to be alluding to.
It's a hard thing to have your rights taken away because they are inconvenient to someone else.
Joe Esposito
On Fri, Jan 27, 2012 at 5:43 PM, LIBLICENSE <[log in to unmask]> wrote:
> From: Sean Andrews <[log in to unmask]>
> Date: Thu, 26 Jan 2012 21:49:42 -0600
>
> > From: Joseph Esposito <[log in to unmask]>
> > Date: Wed, 25 Jan 2012 20:44:03 -0800
> >
> > Much to argue over on this issue, and people will argue, but it does
> > in the end seem to me to be a contract dispute, not a broader issue
> > of copyright.
>
> But these two things are not mutually exclusive: it becomes an issue
> of copyright as a social and cultural norm if the internecine web of
> contracts makes it impossible to create any legal and economically
> sustainable (both in energy and money) to create a business or
> distribution system using current technological possibilities. In any
> case, this is a very interesting development, if only to expose
> another layer of ambiguity in this situation.
>
> Thanks for your comments and for David's passing it along.
>
> Sean
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