The Shakespeare Conference: SHK 23.045  Thursday, 2 February 2012


From:         Larry Weiss <This email address is being protected from spambots. You need JavaScript enabled to view it.>

Date:         February 1, 2012 9:14:23 PM EST

Subject:     Re: SHAKSPER: PIPA/SOPA


Gabriel Egan says:


>Larry Weiss thinks that the judgement in “Bridgeman Art Library v. Corel

>Corp” (1999) only confirmed the existing doctrine about photography

>rather than changing anything. If that were true, all those libraries (like

>the Huntington) that asserted copyright on their microfilms of old books

>were mistaken or were knowingly lying. I suggest that in fact “Bridgeman

>Art Library v. Corel Corp” came as much as a surprise to them as to

>everyone else. 


At the time of the Bridgeman decision, I represented a photographic stock house that specialized in images of art works, so I had already studied the issue in detail well before the decision.  I can assure you that Kaplan’s decision came as no surprise to me.   Anyone in the U.S. who was shocked did not have very astute counseling.  In the U.K., on the other hand, the rule was to the contrary, and the plaintiff in Bridgeman placed its main reliance on an argument that the U.K. law applied to the transaction in question.  


>Because the Digital Millennium Copyright Act separates the

>circumvention of digital locks from infringement of the copyright of the

>material protected by the locks, makers of digital products have been

>able to lock away public domain materials, using the threat of

>prosecution under the DMCA’s anti-circumvention provisions rather than

>threat of prosecution for copyright infringement.


You can threaten anything, with or without justification; but that does not expand the scope of what the statute actually protects.  The act prohibits only circumventing locks that deny access to material that is not in the public domain, which I showed yesterday by quoting the pertinent language.


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