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Argh! This is a problem because the courts and Congress have already determined how copyright "ought to apply" to software. Software is fully protected under current copyright terms. Alternatively, the courts have ruled that software has a expressive component and a functional component. As such, software does not warrant heightened review under the First Amendment. Thus, the courts have already determined that software is not like publishing, not like music. It matters not how we think copyright "ought to apply" until we are in a position to get the law changed and we are far, far from that position.

Now, how do we change the law? The only way to do it is via the political process - just as Professor Lessig has advocated the whole time! Sigh...

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Here are two possibilities:

Mark Kirk (Illinois, 10th). Not because he is necessarily bad, but because his opponent, Hank Perritt, would be better.

Mary Bono, (California, 44th or 45th -- there seems to be a re-districting issue here.) This was one of the proponents of the CTEA. Her opponent seems to be Elle Kurpiewski, who looks "good enough for government work."

Is anyone on-list "represented" (formally speaking) by either of these incumbents ? Are they vulnerable ? Have their opponents a fighting chance ?

Can anyone on-list suggest other representatives that it might be possible to unseat ?

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My point wasn't really about copyright, but rather about common usage. And that does play in the political process. Larry Lessig is right to point out that the Hollywood crowd has done an excellent job of establishing a rhetoric that works in their favor, for example by characterizing copyright strictly as property and all kinds of fair use as piracy and theft.

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Taken in this context the question of "If IP is the same as physical property and it should enjoy the same protections under law then why isn't there an IP tax?" always seems to come up. I never bought into it the tax IP argument but the more I think about it why not.

Have the first piece of protected IP be tax free for a period of time say 10 or 15 yrs. This still keeps incentive for innovation and maintains what the legalized monopoly was originally intended to do. Then after that period expires you would be eligible to renew your IP protection on a 2 year (or some time period) basis and pay a tax proportional to the sales or income that was derived from that piece of IP each year. If you don't renew your IP protection then it goes into the public domain. This way companies like Disney can protect Mickey Mouse until the end of all IP protection but something like the 1920's and 1930's movies sitting on the shelf somewhere rotting a way can go into the public domain sooner and the public gets something for allowing the monopoly to exist. This of course assumes that congress wont extend the lifetime of the copyright and patent again but even so the public would still benfit from an IP tax and maybe we could also use some of that revenue to better fund the USPTO.

regards, kevin

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For example, fair use is defined as an exception to the exclusive rights given to copyright holders. Fair use is not defined as a right in and of itself in the US Code and the courts are upholding this. We need to legislate fair use as a right in and of itself.

As an IP worker bee, I see it every day. One of our clients will say, "we think that person is infringing on our copyright" and they will direct us to send a nasty gram to the alleged infringer. The alleged infringer will either a) not know about fair use or b) will challenge based on fair use. Then it comes down to money. The alleged infringer cannot possibly challenge the 800-pound mouse without a lot of money. So, the alleged infringer stops what they are doing and pays money to the client for damages even if the alleged infringer has done nothing wrong. Without a clear, legislated right to fair use, this practice will continue to stifle creativity and fatten the pockets of copyright holders.

On a positive note, great news about the AOTC blog! Let's get organized! Free the Mouse!

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Is not raising the Importance of the Software Copyright also recognizing the increasing importnace fo the common good in computer software via web technology, internet access, and etc?

I know that it cannot be equally applied to all software areas, its bovious that software OSes have a more common good to the general public than something like Oracle although the general public does indirectly benefit from Oracle installations in ecommmerce sites..

I realize that each person may be coming form their own viewpoint but remember all of us even Lessig is attempting to define common good in the balance between property rights and the public good rather thna wiat for the ignorance of gov officals to take over.. which I think is a good thing!

Glad to see that their is movement on the political side of the issue...

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