Tag Archives: legal scholarship

happy birthday is free after all

According to Robert Brauneis’ new paper, “Copyright and the World’s Most Popular Song”, the song “Happy Birthday To You” — long held as an example by us copyright reformists — is most likely not copyrighted after all, due to the tortuous path of ownership and failure to re-register.[linked from patry copyright blog]

See also the brauneis website for the song’s history.

The author draws four important lessons, summarized here:

  1. [T]he perils of using anecdotes in legal and policy arguments. (p.3) Hoho. Yes.
  2. Noting the utter lack of litigation over this song, despite the weaknesses in the copyright and the money at stake ($2M/year), Brauneis suggests, “[T]he absence of such challenges strongly suggests that there are structural barriers to mounting them, and those structural barriers are worth exploring.”
  3. Noting what was effective abandonment of the copyright of the work for long stretches of time, despite significant uses by others, Brauneis reminds readers that “Were “Happy Birthday to You” a piece of real property, its open, unopposed use over such a period could have resulted in the acquisition of prescriptive rights.” Developing doctrines of adverse possession / prescriptive easements to go along with the propertarian rhetoric of copyright maximalists has been on many people’s proposal lists (even I, as a lowly 1L in properly law, came up with this argument), but this article gives the “dead hands” arguments new teeth by tying the ongoing copyright term extensions to his newly uncovered history: “In light of that increase [in copyright term], it may be necessary to develop some doctrine to avoid the inefficiency and inequity that could result from reassertion of copyright in a work that had been published and used by others without opposition over a long period of time.”
  4. A lesson about the difficulty in tracking copyright, and a reminder that that difficulty will only increase as copyright terms lengthen. Brauneis refers to Copyright Office records, which, reminder to readers, were decimated by the abolition of formal registration requirements in the 1976 Copyright Act. This is also an opportune moment to plug the Orphan Works Act, recently re-introduced in both the House & the Senate. (See beSpacific, 4/27; mebeliWired Campus, 4/25)

Also, just in the matter of women’s musical history, Brauneis does a great job in recovering and fleshing out the story of Mildred Hill and Patty Hill.

ohohohoh

This is highly amusing. A Constitutional flaw in the way that patent appeals judges have been appointed since 2000 (by persons without authority to do so) threatens to invalidate all the decisions made by a panel that includes a judge appointed since 2000. [My initial hearing of snatches of this made me think there was a problem with the Fed Circuit, which would have been even more hilarious! But this is pretty funny too.]

rotflol …

but seriously, folks, this will never happen. Congress will hastily fix the appointment process and pass a law grandfathering in the eight years’ worth of decisions. The grandfather statute will be challenged, and will be upheld on appeal as a lawful exercise of Congress’ power to regulate commerce. Decisions premised on this problem will be held off or actions stayed until resolution of the dispute.

Charles Miller, a spokesman for the Justice Department, said the government had no comment. “There is really nothing we can say at this time,” he said.

rotfl, rotfl …

But a 1999 law changed the way administrative patent judges are appointed, substituting the director of the Patent and Trademark Office for the secretary of commerce.

And now that Professor John W. Duffy has pointed it out, it’s so completely obvious! Of course the head of the PTO can’t appoint judges. How did nobody ever see this before? … Someone is going to be digging out their notes from nine years ago tonight and going “oh shit….”

teeeheeeheee…. i’m going to be chuckling on and off all the rest of the night.

Duffy paper @ SSRN