Copyrighted Works Must Be Novel and Nonobvious

To anyone who knows IP law, the title of this post looks like either ignorance or craziness. I assure you, it’s not ignorance. Everyone knows that one of the distinguishing features between copyrights and patents is that patents require novelty and nonobviousness, and copyrights don’t. All you need to get a copyright is to have an “original” work of authorship — and “originality” is an extremely low threshold. It doesn’t require that the content be new, and it certainly doesn’t require that it be nonobvious; it only requires that it be yours (that is, “original” to you).

That’s the theory, but I don’t think that’s the practice. I was struck by this thought (ow!) over the weekend as I was reading materials on substantial similarity and the idea-expression distinction. (Perhaps this thought occurs to all copyright lawyers at some point; maybe it’s just my week.) There are certain famous passages that get intoned by copyright scholars and practitioners to explain such concepts, a bit like the missal in a Catholic mass. Originality is sometimes explained with this reading from the book of Learned Hand:

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“The Power That I Have On You Is To Spare You”

While instant messaging a high school friend yesterday, she mentioned that she had just seen the final episode of The West Wing on DVD (in which outgoing president Josiah Bartlett pardons ex-Director of Communications Toby Ziegler from a conviction for leaking national security secrets to The Washington Post), and then linked me to a recent Slate article handicapping President Bush’s potential pardons, while commenting that “maybe if Bush was more like Bartlett, he wouldn’t have to pardon so many of his cronies.” I commented that President Clinton (and most other presidents) have done the same thing, which caused her to rephrase her statement by replacing “Bush” with “all the real presidents.”

I know: there are any number of things lame duck presidents can do that should probably be reviewed and reconsidered before we get to presidential pardons. I also understand that the pardon is a valuable tool that allows the executive branch to swiftly undo so-called “travesties of law,” setting free the wrongly convicted. Yet the Slate article got me thinking about whether it isn’t worth considering a check on this particular executive power sometime soon, both on a state and federal level (though the misuse tends to be more egregious on the federal level).

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Seventh Circuit Week in Review: More and More on the Use of Prior Crimes Evidence

The Seventh Circuit had two new opinions in criminal cases in the past week, with the government winning both appeals.  By some coincidence, both cases involved the use of prior crimes evidence at trial, a topic that was also the focus of my last “Week in Review” post.  Indeed, one of this past week’s cases was strikingly similar in its facts to Perkins from the previous week, but was analyzed in a rather different manner.

United States v. Webb (No. 08-1338) was the new case similar to Perkins.  Webb was arrested in connection with the discovery of drugs in the house of his friend Hartman.  At Webb’s trial on drug trafficking charges, the government introduced into evidence Webb’s 1996 conviction for distributing cocaine.  Following his conviction on the new charges, Webb argued on appeal that this evidence violated Federal Rule of Evidence 404(b), which prohibits the use of prior crimes evidence for the purpose of establishing a defendant’s propensity to commit new crimes.  In response, the government argued (precisely as it had in Perkins) that the prior crimes evidence helped to establish intent and absence of mistake, which are two permissible purposes for such evidence.  In last week’s post, I argued that the Seventh Circuit accepted these arguments too uncritically in Perkins; based on the reasoning of that case, it was hard for me to see how prior drug trafficking convictions would ever be kept out of evidence in new drug distribution cases.

But in Webb, the Seventh Circuit (per Chief Judge Easterbrook) correctly recognized how tenuous the government’s intent/mistake theory was.  The court also recognized the “tension” in its prior cases regarding the use of prior drug crimes evidence.

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