2 responses so far ↓

• 1 Frank Pasquale // Aug 28, 2006 at 3:04 pm

  I like it! In Ulysses & the Sirens, Jon Elster ponders the paradox at the heart of the command: “Be Spontaneous!”

• 2 madisonian.net » A PHOSITA for Copyright // Aug 29, 2006 at 9:41 am

  […] One of the major rationales for the copyright approach is a combination of adminstrability concerns and the “non-discrimination” postulate, which is sometimes linked to the First Amendment. In sum, these arguments hold that courts neither can nor should be in the business of validating “good” art with copyrights. Fred Yen, Christine Farley, and others have written about the inevitability of artistic judgments in copyright, but Diane Zimmerman is, I think, one of the few scholars recently to have gone so far as to suggest that some species of artistic discrimination in copyright might actually be both a manageable and a good thing. Joe Miller’s posts inspire me to think about how copyright might go about that task — that is, in some contexts, by creating a copyright PHOSITA, the law might manage to put some useful and usable limits on the expanding universe of copyrightability. (Nothing in Feist, as I read it, prevents Congress from legislating a threshold of copyrightability that is *higher* than “minimal creativity. Which is not to say that the notion would have an easy time of it.) I can’t help but think that what Wynton Marsalis has to say is relevant here. Thanks, Joe: You’ve got me thinking. Trackback URL: http://madisonian.net/archives/2006/08/29/a-phosita-for-copyright/trackback/ […]

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