The Supreme Court’s Kelo v. New London ruling had broad implicati...
The Supreme Court’s Kelo v. New London ruling had broad implications for both physical and intellectual property (IP), Progress & Freedom Foundation’s Jim DeLong told a House subcommittee on trade and consumer protection. He said the high court and…
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Congress need to reject a distinction between personal and property rights. The Supreme Court’s June decision gave local govt. authority to take private land by eminent domain and give it to developers. While the Kelo ruling caused a public uproar, there’s a long history of misuse of eminent domain and regulatory power grabs, DeLong said. He said the Supreme Court has effectively removed itself from judging what a state determines to be a legitimate public use and is “willing to accept as a ‘public use’ anything that claims an economic development rationale.” Thus, the Kelo decision was not unexpected. As property rights horror stories go, Kelo is 2nd rank, he told lawmakers. DeLong said he viewed the strong public response to Kelo as evidence of the public’s willingness to let the market determine land use. He said the public’s increased focus on IP rights, in the wake of high-profile online piracy cases, was also identified as a factor in the public outcry against the Kelo decision. With his testimony, DeLong entered into the record a paper he wrote that draws a direct connection between real and IP rights. A bill (HR-1201) pending before Congress would take property “from a bunch of A’s and give it to a bunch of B’s, only without paying a cent to the A’s. And it, too, relies on a test composed of sanctimonious verbiage that could be failed only by the deeply stupid,” he said in the paper. The Digital Millennium Copyright Act made it illegal to crack encryption measures and distribute code cracking tools but HR-1201 would “repeal this ban insofar as the code cracker or the toolsmith wanted to obtain, or help others obtain, access for purposes of making ‘noninfringing use’ of a work.” DeLong said there are many noninfringing uses of copyrighted works and most are created by the courts under the “grab bag” known as the fair use doctrine. Once the tools are available, or the decrypted copies are available, then there is no way of controlling them, he said. The IP involved has then been “seized from all the As who used to own it and redistributed to all the Bs.”