Watch Out For the Omega Copyright Windup; Wall Street Journal, 7/30/10

Eric Felten, Wall Street Journal; Watch Out For the Omega Copyright Windup: A case about pricing timepieces could crimp library lending:

"Katharine Hepburn couldn't understand why Jimmy Stewart didn't devote himself to his art. Their characters in the 1939 movie, "The Philadelphia Story," are walking back from the local library, where Hepburn has acquired a copy of Stewart's collection of short stories: "When you can do a thing like that book, how can you possibly do anything else?" she asks (knowing that he has sunk to the rank of gossip reporter).

"You may not believe this, but there are people that must earn their living," he answers.

"Of course," she says, "but people buy books, don't they?"

"Not as long as there's a library around."

Stewart's hard-scrabble scribbler would be pleased to learn that a Supreme Court case scheduled to be argued in the coming term could put the kibosh on library lending, at least of those books published or printed outside the U.S. In a friend-of-the-court brief, the American Library Association and other library groups argue that a recent Ninth U.S. Circuit Court of Appeals decision "threatens the ability of libraries to continue to lend materials in their collections."

The librarians fear they are going to suffer collateral damage from a curious copyright case that has nothing to do with books. It's Costco Wholesale Corporation v. Omega, S.A.—a battle over whether the storied Swiss watch brand can control where and at what price its chronometers are sold in the U.S...

No doubt Omega was smart to turn to copyright law, given what an increasingly powerful tool it is. The number of years copyright lasts has been repeatedly lengthened, and juries have been known to hand down fines in the millions for illegally downloading a few dozen songs.

The strange and logically contradictory thing, though, is that copyright has been gaining in power at the very same time it has been rendered impotent. Some critics, such as Harvard law professor Lawrence Lessig, argue that copyright has become an oppressive behemoth; others, such as novelist Mark Helprin, lament that the old circle-c is being turned into a dead letter.

They are both right. In response to rampant violation of copyright, the entertainment industry, publishers and other such businesses have gotten Congress to beef up intellectual property protections. But "the worldwide copying machine called the Internet," as Suffolk University professor of law Stephen Michael McJohn puts it, continues to hum along, undeterred. The result, says Mr. McJohn, is a bizarre legal disconnect: "Almost everything is copyrightable, and almost everything is used without regard for copyright.""

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