The public domain consists of all the creative works to which no exclusive intellectual property rights apply. Those rights may have been forfeited, expressly waived, or may be inapplicable; the works of William Shakespeare and Beethoven, most early silent films, are in the public domain either by virtue of their having been created before copyright existed, or by their copyright term having expired. Some works are not covered by copyright, are therefore in the public domain—among them the formulae of Newtonian physics, cooking recipes, all computer software created prior to 1974. Other works are dedicated by their authors to the public domain; the term public domain is not applied to situations where the creator of a work retains residual rights, in which case use of the work is referred to as "under license" or "with permission". As rights vary by country and jurisdiction, a work may be subject to rights in one country and be in the public domain in another; some rights depend on registrations on a country-by-country basis, the absence of registration in a particular country, if required, gives rise to public-domain status for a work in that country.
The term public domain may be interchangeably used with other imprecise or undefined terms such as the "public sphere" or "commons", including concepts such as the "commons of the mind", the "intellectual commons", the "information commons". Although the term "domain" did not come into use until the mid-18th century, the concept "can be traced back to the ancient Roman Law, as a preset system included in the property right system." The Romans had a large proprietary rights system where they defined "many things that cannot be owned" as res nullius, res communes, res publicae and res universitatis. The term res nullius was defined as things not yet appropriated; the term res communes was defined as "things that could be enjoyed by mankind, such as air and ocean." The term res publicae referred to things that were shared by all citizens, the term res universitatis meant things that were owned by the municipalities of Rome. When looking at it from a historical perspective, one could say the construction of the idea of "public domain" sprouted from the concepts of res communes, res publicae, res universitatis in early Roman law.
When the first early copyright law was first established in Britain with the Statute of Anne in 1710, public domain did not appear. However, similar concepts were developed by French jurists in the 18th century. Instead of "public domain", they used terms such as publici juris or propriété publique to describe works that were not covered by copyright law; the phrase "fall in the public domain" can be traced to mid-19th century France to describe the end of copyright term. The French poet Alfred de Vigny equated the expiration of copyright with a work falling "into the sink hole of public domain" and if the public domain receives any attention from intellectual property lawyers it is still treated as little more than that, left when intellectual property rights, such as copyright and trademarks, expire or are abandoned. In this historical context Paul Torremans describes copyright as a, "little coral reef of private right jutting up from the ocean of the public domain." Copyright law differs by country, the American legal scholar Pamela Samuelson has described the public domain as being "different sizes at different times in different countries".
Definitions of the boundaries of the public domain in relation to copyright, or intellectual property more regard the public domain as a negative space. According to James Boyle this definition underlines common usage of the term public domain and equates the public domain to public property and works in copyright to private property. However, the usage of the term public domain can be more granular, including for example uses of works in copyright permitted by copyright exceptions; such a definition regards work in copyright as private property subject to fair-use rights and limitation on ownership. A conceptual definition comes from Lange, who focused on what the public domain should be: "it should be a place of sanctuary for individual creative expression, a sanctuary conferring affirmative protection against the forces of private appropriation that threatened such expression". Patterson and Lindberg described the public domain not as a "territory", but rather as a concept: "here are certain materials – the air we breathe, rain, life, thoughts, ideas, numbers – not subject to private ownership.
The materials that compose our cultural heritage must be free for all living to use no less than matter necessary for biological survival." The term public domain may be interchangeably used with other imprecise or undefined terms such as the "public sphere" or "commons", including concepts such as the "commons of the mind", the "intellectual commons", the "information commons". A public-domain book is a book with no copyright, a book, created without a license, or a book where its copyrights expired or have been forfeited. In most countries the term of protection of copyright lasts until January first, 70 years after the death of the latest living author; the longest copyright term is in Mexico, which has life plus 100 years for all deaths since July 1928. A notable exception is the United States, where every book and tale published prior to 1924 is in the public domain.
Case law is a set of past rulings by tribunals that meet their respective jurisdictions' rules to be cited as precedent. These interpretations are distinguished from statutory law, which are the statutes and codes enacted by legislative bodies, regulatory law, which are regulations established by executive agencies based on statutes; the term "case law" is applied to any set of previous rulings by an adjudicatory tribunal that guides future rulings. In common law countries the term is used for judicial decisions of selected appellate courts, courts of first instance, agency tribunals, other bodies discharging adjudicatory functions. In common law countries, "case law" is a near-exact synonym for "common law". In the common law tradition, courts decide the law applicable to a case by interpreting statutes and applying precedents which record how and why prior cases have been decided. Unlike most civil law systems, common law systems follow the doctrine of stare decisis, by which most courts are bound by their own previous decisions in similar cases, all lower courts should make decisions consistent with previous decisions of higher courts.
For example, in England, the High Court and the Court of Appeal are each bound by their own previous decisions, but the Supreme Court of the United Kingdom is able to deviate from its earlier decisions, although in practice it does so. Speaking, higher courts do not have direct oversight over the lower courts of record, in that they cannot reach out on their own initiative at any time to overrule judgments of the lower courts; the burden rests with litigants to appeal rulings to the higher courts. If a judge acts against precedent and the case is not appealed, the decision will stand. A lower court may not rule against a binding precedent if it feels that it is unjust. If the court believes that developments or trends in legal reasoning render the precedent unhelpful, wishes to evade it and help the law evolve, it may either hold that the precedent is inconsistent with subsequent authority, or that it should be distinguished by some material difference between the facts of the cases. If that judgment goes to appeal, the appellate court will have the opportunity to review both the precedent and the case under appeal overruling the previous case law by setting a new precedent of higher authority.
This may happen several times. Lord Denning, first of the High Court of Justice of the Court of Appeal, provided a famous example of this evolutionary process in his development of the concept of estoppel starting in the High Trees case: Central London Property Trust Ltd v. High Trees House Ltd K. B. 130. The different roles of case law in civil and common law traditions create differences in the way that courts render decisions. Common law courts explain in detail the legal rationale behind their decisions, with citations of both legislation and previous relevant judgments, an exegesis of the wider legal principles; the necessary analysis constitutes a precedent binding on other courts. By contrast, decisions in civil law jurisdictions are very short, referring only to statutes; the reason for this difference is that these civil law jurisdictions adhere to a tradition that the reader should be able to deduce the logic from the decision and the statutes, so that, in some cases, it is somewhat difficult to apply previous decisions to the facts presented in future cases.
Some pluralist systems, such as Scots law in Scotland and so-called civil law jurisdictions in Quebec and Louisiana, do not fit into the dual "common-civil" law system classifications. Such systems may have been influenced by the Anglo-American common law tradition; because of their position between the two main systems of law, these types of legal systems are sometimes referred to as "mixed" systems of law. Law professors in common law traditions play a much smaller role in developing case law than professors in civil law traditions; because court decisions in civil law traditions are brief and not amenable to establishing precedent, much of the exposition of the law in civil law traditions is done by academics rather than by judges. Common law courts relied little on legal scholarship. Today academic writers are cited in legal argument and decisions as persuasive authority, thus common law systems are adopting one of the approaches long common in civil law jurisdictions. Judges may refer to various types of persuasive authority to reach a decision in a case.
Cited non-binding sources include legal encyclopedias such as Corpus Juris Secundum and Halsbury's Laws of England, or the published work of the Law Commission or the American Law Institute. Some bodies are given statu
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York, Vermont, the court has appellate jurisdiction over the district courts in the following districts: District of Connecticut Eastern District of New York Northern District of New York Southern District of New York Western District of New York District of VermontThe Second Circuit has its clerk's office and hears oral arguments at the Thurgood Marshall United States Courthouse at 40 Foley Square in Lower Manhattan. Due to renovations at that building, from 2006 until early 2013, the court temporarily relocated to the Daniel Patrick Moynihan United States Courthouse across Pearl Street from Foley Square, certain court offices temporarily relocated to the Woolworth Building at 233 Broadway. Several notable judges have served on the Second Circuit, including three named Associate Justices of the United States Supreme Court: John Marshall Harlan II, Thurgood Marshall, Sonia Sotomayor.
Judge Learned Hand served on the court from 1924 to 1961, as did his cousin, Augustus Noble Hand, from 1927 until 1953. Judge Henry Friendly served from 1959 to 1986; as of October 17, 2018, the judges on the court are as follows: Chief judges have administrative responsibilities with respect to their circuits, preside over any panel on which they serve unless the circuit justice is on the panel. Unlike the Supreme Court, where one justice is nominated to be chief, the office of chief judge rotates among the circuit judges. To be chief, a judge must have been in active service on the court for at least one year, be under the age of 65, have not served as chief judge. A vacancy is filled by the judge highest in seniority among the group of qualified judges; the chief judge serves until age 70, whichever occurs first. The age restrictions are waived if no members of the court would otherwise be qualified for the position; when the office was created in 1948, the chief judge was the longest-serving judge who had not elected to retire on what has since 1958 been known as senior status or declined to serve as chief judge.
After August 6, 1959, judges could not remain chief after turning 70 years old. The current rules have been in operation since October 1, 1982; the court has thirteen seats for active judges, numbered in the order. Judges who retire into senior status leave their seat vacant; that seat is filled by the next circuit judge appointed by the president. Federal judicial appointment history#Second Circuit United States Court of Appeals for the Second Circuit Recent opinions from FindLaw
West American Digest System
The West American Digest System is a system of identifying points of law from reported cases and organizing them by topic and key number. The system was developed by West Publishing to organize the entire body of American law; this extensive taxonomy makes the process of doing case law legal research less time consuming as it directs the researcher to cases that are similar to the legal issue under consideration. The problem of finding cases on a particular topic was a large problem for the growing American legal system of the 19th century. John B. West, the founder of West Publishing, described this problem in his article A multiplicity of reports. To solve the problem, he developed a system with two major parts. First, his company published cases in many American jurisdictions in bound volumes called reporters. Second, he put together a classification system in which he divided the law into major categories which he called topics, he created hundreds of subcategories. To save space in printing, these were given a number called a key number.
He applied this "topic and key number" system to the cases he published. The key number is identified in the books with a key symbol graphic; each case published in a West reporter is evaluated by an editor who identifies the points of law cited or explained in the case. The editor places the summaries of the points of law covered in the case at the beginning of the case; these summaries are a paragraph long, are called headnotes. Each headnote is assigned a topic and key number; the headnotes are arranged according to their topic and key number in multi-volume sets of books called Digests. A digest serves as a subject index to the case law published in West reporters. Headnotes are editorial guides to the points of law discussed or used in the cases, the headnotes themselves are not legal authority. West publishes West's Analysis of American Law, a complete guide to the topic and key number system, it is revised periodically. In print, a digest works like an encyclopedia, in that the topics are listed in alphabetical order and printed on the spines.
The "Descriptive Word Index" provides guidance as to key numbers. The digest system includes digests for the individual states; the U. S. Supreme Court, Bankruptcy Courts, Federal Claims Court, military courts each have an individual digest, as well as their decisions being included in the Federal Practice Digest with the notes of decisions from the federal District Courts and Courts of Appeals. Digests are published for West's National Reporter System. Specialty subject digests exist, such as the Education Law Digest, the Social Security Digest. For nationwide research, about once a month, West publishes a General Digest volume, which incorporates classified digest notes from all reporters of the West National Reporter System; these are cumulated into a Decennial Digest. Decennial implies that this occurs every ten years, but in the past several decades, there have been Decennial Digest Parts I and II, so the cumulation is now more frequent. However, the various Decennial Digests are not cumulated.
Thus, completing such a search over several decades requires consulting the Decennial Digests, updating that work with the most recent series of the General Digest. Some of the state and topical digests are revised to include the first cases in the jurisdiction, while the spines of the books of some of the other digests indicate that they are from "1933 to date," for instance, indicating that one must consult a prior series for references to earlier cases; the state, federal and topical digests are updated by interim pamphlets, pocket parts, replacement volumes, or a new series. Researchers can search the digest electronically using Westlaw: with the "Key Number Search Tool," which uses a word search to identify up to five key numbers, with the "Key Numbers and Digest" feature, by a key number search using the "Terms and Connectors" method, by using the KeySearch feature, or by finding a relevant case using keyword searching and using the key number hyperlinks in the document to find related cases.
Most secondary sources published by Thomson West, such as Corpus Juris Secundum and American Jurisprudence have key number hyperlinks in their on-line Westlaw versions. The "Key Numbers and Digest" feature and the hyperlinks create a "Custom Digest." The Custom Digest allows: selection of the jurisdiction of interest. Selecting key numbers and jurisdictions in the "Key Number Search Tool" results in a similar display of digest headnotes. Since all West headnote annotations are merged on Westlaw into a single database from which each Custom Digest is generated, there is no need to consult each separate series of the hard copy Decennial Digest. Full text of the cases may be accessed from the Custom Digest by clicking on the underlined case citation; the key number search or KeySearch will retrieve entire cases from a case law database. Other digest systems exist, including Butterworth's Digest for the United Kingdom (also containing references to cases decided in other Commonwealth