Fwd: RE: Veeck v SBCCI

[Shubha Ghosh]

I agree that the merger doctrine (as well as the idea-expression doctrine
more broadly) has the flavor of a magician's sleight of hand.  A more apt
description may be retro-Platonism.

In the context of statutes, though, the argument is that there is only one
way to express what the law is and that is to use the actual expression of
the law adopted by the legislative or administrative body.  One does not
have to be a textualist to believe that one starts with an understanding of
what the law is  from the words that the sovereign has adopted to express
the law. Strict textualists stop at the words, but all legal interpreters
start there. Therefore, requiring second comers to rely upon Guilberts-like
restatement of the code would put second comers at a disadvantage in
expressing the relevant law.  Without being able to use the expression of
the sovereign, second comers would be conveying a cheap and inaccurate
representation. Whether restricting second comers would also constitute a
due process violating is another question.  I would think that as long as
the sovereign allows some access (such as publicizing the code or even
selling the code), then due process has not been violated by enforcing a
copyright.

On the state action point: The question of state action in speech and
copyright cases has always troubled me.  In Glynn's example of the free
exercise claim, I would think there has been state action but no violation
(because the state is enforcing a generally applicable law).  Isn't an
injunction an example of state action?  I thought that was the basis for
state action in defamation cases where the plaintiff is acting pursuant to a
common law action (as opposed to a defamation claim based on statute). With
respect to enforcement of copyright law, the state action point seems
relatively easy.


Professor Shubha Ghosh
University at Buffalo Law School, SUNY
WORK: 716-645-2749
724 O'Brian Hall



----Original Message Follows----
From: Glynn Lunney <glunney at law.tulane.edu>
To: 'Shubha Ghosh ' <ghoshlaw at hotmail.com>, "'RSTERN at KHHTE.com '"
<RSTERN at KHHTE.com>, Glynn Lunney <glunney at law.tulane.edu>,
"'L10MXP1 at wpo.cso.niu.edu '" <L10MXP1 at wpo.cso.niu.edu>,
"'cyberprof_list at uclink4.berkeley.edu '"
<cyberprof_list at uclink4.berkeley.edu>, "'ipprofs at listserv.fplc.edu '"
<ipprofs at listserv.fplc.edu>, "'CONLAWPROF at LISTSERV.UCLA.EDU '"
<CONLAWPROF at LISTSERV.UCLA.EDU>
Subject: RE: Veeck v SBCCI
Date: Tue, 2 Oct 2001 06:16:59 -0500

Possible state actions:
(1)  Passing the Copyright Act w/o an express exception for material that
becomes the "law" seems like the most plausible candidate to me.

I find the other two alternatives mentioned difficult for the following
reasons:
(2)  If we treat the judicial injunction (mere enforcement of the
established property rights regime) as state action subject to Due Process,
does that suggest that such injunctions where they pertain to political or
religious issues necessarily implicates strict scrutiny?  For example, if
court enforces copyright on Scientology's religious documents and enjoins
their publication, I don't believe that we should treat that as akin to
government action inhibiting the free exercise of religion (or establishing
one).  While state enforcement of property rights can implicate the due
process clause (i.e. the case involving racially restrictive private
covenants on land ownership), I'm not sure we want to treat copyright
injunctions as state action subject to applicable constitutional
limitations.

(3)  I have trouble finding a due process violation as a result of the
City's enactment of the Code as its law without obtaining an express waiver
of the Copyright from SBCCI because courts rarely find a due process
violation as a result of the government's failure to act.  Not saying it
can't happen, just that (1) seems a better approach.

Also, Richard, your argument made me wonder whether, if we apply (3), we
ought to treat the City's action as a taking of SBCCI's copyright in the
building code.  I suppose that Monsanto would govern the issue and
resolution would turn on whether the waiver requirement was explicitly
stated up front so that SBCCI knew that it would waive its copyright by
pressing for its Code's enactment as law.

As for Shubha's point about merger, I find that the merger doctrine is like
a stage magician's slight of hand.  It serves to distract the eye from the
real issue.  In almost all cases, the real issue is not whether there is
just one or a few ways of expressing an idea, the real issue is what is the
idea.  Thus, the real issue here is whether the precise language of the Code
(as enacted) is the idea of this work.  If it is, then the precise language
is unprotected without regard to the merger doctrine.  If it is not, then
presumably the precise language of the Code is not one of only a few ways of
expressing that idea (whatever it is).  By suggesting that the key issue is
how many ways there are to express the idea in this case, the merger
doctrine often seems a trick to evade a thorough discussion of why the
precise language of the building code should or should not be considered
idea (and hence unprotected) for purposes of copyright.



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