|
The Calhoun work was in fact "first in time."
1. The Calhoun work has been determined by the Court to be identical to a later work. (Fed. Court of Appeals, Decision, pg 9)
2. "It should be emphasized that independent creation [theory] is not an affirmative defense (ie, a claim extraneous to the plaintiff's prima facie case). Rather, independent creation attempts to prove the opposite of the Calhoun's primary claim, i.e. copying by McGee. Keeler Brass Co. v. Continental Brass Co., 862 F.2d 1063, 1066 (4th Cir. 1988). (Fed. Court of Appeals, Decision, pg. 4)
The Court put itself in a fact finding position to reach this resolve in the case.
Concluding that these two identical musical works have equal copyright protection is a wrong application of the copyright law. It requires, in itself, a [creative] application of the fundamental copyright law resulting in not only conflicting [created] applications of law , such as found in the weight that the independent creation theory carries in any Court decision, but conflicting works of creation in and of themselves. The copyright law was not intended by congress to allow the Court to setup an alternative set of rules for determination and provide protection for identical creations.
3. Based solely on the independent creation theory and lack of evidence to refute the theory, the Court supports a non-infringement
position to sustain the viability of the second work.
This is where the Court has taken the wrong turn in this case. The Court has established over time several theories to approach copyright law resulting now in obvious deterioration of the protection granted under the law. It [the Court] has created parallel applications of the copyright law. This should not be.
The "first in time" fact should supercede a theory of independent creation and halt any publications, whenever "in time" discovered. 17 USC §106 lays the foundation for what "the owner [first in time] has the exclusive rights to do and to authorize."
RONALD G. CALHOUN
August 1, 2002
|
|
