2. Due Process/Public Domain
a. Absence of Controlling Legal Authority
In the absence of an expressed pronouncement from either the Supreme Court or Congress, [1] our creation of an automatic rule rendering the copyright of a model code nugatory per se when and if it is enacted into law is unwise, imprudent, and far in excess of our authority. Before such a work is enacted into law, the Copyright Act unquestionably affords copyright protection to its author; and Congress has given no indication that, on enactment, this protected status evanesces ipso facto as to the whole universe of potential copiers.[2] As I discuss in greater detail below, recent congressional enactments and accompanying federal agency
- ↑ Cf. CCC Information Services, Inc. v. Maclean Hunter Market Reports (CCC), 44 F.3d 73-74 (2d Cir. 1994) (discussing whether the Red Book, which was adopted by States as the legal standard for car valuations, passed into the public domain by virtue of its reference into the law):
The [public domain] argument is that the public must have free access to the content of the laws that govern it; if a copyrighted work is incorporated into the laws, the public need for access to the content of the laws requires the elimination of the copyright protection.
...
No authority cited by CCC directly supports the district court's view [the view that the Red Book had passed into the public domain].
...
We are not prepared to hold that a state's reference to a copyrighted work as a legal standard for valuation results in loss of the copyright. (emphasis added). - ↑ Cf. County of Suffolk v. First American Real Estate Solutions, 261 F.3d 179, 193 (2d Cir. 2001) ("The determination that no one may own a copyright in statutes and opinions arises not from a specific provision of the Copyright Act, but from a 'judicial gloss' on the Act.") (citation omitted).
43
