< PREVIOUS ] [ 2002 Index ] [ Ed Quillen HOME ] [ SEARCH ] [ NEXT >
One afternoon a few months ago, I reached for some music, and alit upon an old cassette tape, purchased back in the 1980s before I owned a CD player: Traveling Wilburys Vol. I.
Alas, the tape turned into snarls and tangles as soon as I started it on the cassette deck. It's a fine assortment of music -- Roy Orbison, George Harrison, Bob Dylan, Tom Petty -- and so I figured I'd get it on CD.
Inquiries at our local shop for new and recycled
recordings, Road House Music, produced a sad explanation.
The CD was no longer in print.
I asked Dave Ward,
the owner, to keep his eye out for it if it ever arrived as
a trade-in.
I wouldn't hold my breath,
he cautioned. It's
like classic Stones stuff -- nobody ever trades it in.
Once they have it, they keep it.
So there I stood, ready to pay again for a piece of
intellectual property,
and it wasn't for sale. But
it did inspire some thought about how other forms of
property law might be applied to intellectual property.
Consider, for instance, Colorado water law. We start with a resource, the water in a stream. The right to use it can be claimed by anyone who diverts the water for beneficial use.
More precisely, you might file a plan for diversion and
beneficial use with the water court, and get a
conditional decree.
To maintain your claim to a
water right, you need to show due diligence
by
pursuing your plan. And once you get your water right, it
can be deemed abandoned
if you don't exercise
it.
This concept that a property right is abandoned if it is not maintained also applies to mining claims. After you stake a claim, you need to do assessment work toward developing the deposit, or else the claim is abandoned, and someone else can file a claim on the same land.
Indeed, the concept of abandonment applies to all manner of property. For instance, someone quits paying rent on a safe-deposit box in a bank, and then can't be found. Eventually, whatever was in the box ends up in the hands of the official custodian of abandoned property -- the state treasurer's office in Colorado -- who tries to find the owner, and if none appears, then the property is auctioned for the benefit of the state treasury.
Not all of this fits intellectual property like recordings and computer software, of course, but the concept of abandonment seems useful.
How might this work? For instance, I still do most of my writing in good old WordStar for DOS. It hasn't been upgraded in a decade, and those who've looked into some modernization report that it's impossible to track down all the people and companies who might have copyright claims -- the spell-checker was licensed from one outfit back then, the thesaurus from another firm, the printer drivers from yet another shop, etc.
Most of these companies can't even be found now, but the possibility that one might emerge to claim infringement is enough to discourage the production of something useful, like a WordStar for the Linux console (there are some quasi-clones, but it would be better to have to real thing).
However, if there were a way to declare that a given
chunk of software was abandoned,
in the much the
same way that a mining claim or water right might be
abandoned, then other people might make legitimate use of
the material.
Similarly, if a recording company refused to make a recording available, then one might presume that it had abandoned this right, and someone else could claim it. The same process could be applied to book publishers, etc.
In other words, the common slogan about how a Colorado
water right works -- use it or lose it
-- would
apply to intellectual-property claims. If a copyright
holder didn't use it
by making the material
available, then the holder would lose it
and other
people could circulate the material.
Of course, there would be opposition. Record companies would somehow claim that this deprived artists of royalties -- as if the artists collected royalties on albums that aren't for sale.
The federal Constitution provides for copyright
protection To promote the Progress of Science and useful
Arts, by securing for limited Times to Authors ... the
exclusive Right to their respective Writings....
Such
progress obviously cannot be promoted if the material is
not in circulation, and so the use it or lose it
doctrine ought to pass Constitutional muster.
A National Office of Abandoned Intellectual Property Administration should be able to support itself on reasonable fees, and nothing that somebody was willing to buy would ever go out of circulation. We'd all be better off.
As for the solution to my Traveling Wilburys problem, I need to plead the Fifth Amendment, being as I have a CD burner and the local grapevine produced someone who'd loan his CD. But do note that I tried to do this the honest way, and the record company refused to sell it to me. It's abandoned, and somebody else should be able to claim it.
< PREVIOUS ] [ 2002 Index ] [ Ed Quillen HOME ] [ SEARCH ] [ NEXT >