Sunday Pop Quiz
How many books are currently in the public domain and available online?
- About 10,000
- About 50,000
- 100,000 +
Another easy one? The answer is C, at least according to Project Gutenberg, where you can access more than 100,000 books between PG and its various partners and affiliates. I don’t know about you, but I find that a mind-boggling number of free, digitally-available volumes. Especially since it feels like with the more recent copyright extensions that virtually nothing is passing into the public domain these days.
In my last installment of this informal series, I introduced the idea of balance in copyright law – more specifically balance between the rights of a creator and the rights of the public to intellectual property. I want to follow that up here with a very simplified discussion of how that balance has been struck by the US Supreme Court. While that may seem counterintuitive, since copyright law is Congressionally controlled, I am sticking to the Court decisions here because I think they’re a) easier to understand than some of the statutory language, b) good at clarifying some of the most important issues in copyright law, and c) ideally about balancing competing claims to intellectual property rights.
The first copyright cases of significance are Wheaton v. Peters in 1834 and Baker v. Selden in 1879. Wheaton determined that statutory limitations on copyright trumped any common law tradition of perpetual copyright in any and all of the (then 24!) states, with the further requirement that a creator follow all statutory provisions required for registering the copyright properly before trying to enforce the right legally. Thus the Court held
That a man is entitled to the fruits of his own labors must be admitted, but he can enjoy them only, except by statutory provision, under the rules of property which regulate society and which define the rights of things in general. . .
The first section of the act of 1790 provides that an author, or his assignee,
“Shall have the sole right and liberty of printing, reprinting, publishing, and vending such map, chart, book, or books for the term of fourteen years from the recording of the title thereof in the clerk’s office–. And at the expiration of the said term, the author, &c., shall have the same exclusive right continued to him, &c., for the further term of fourteen years." [emphasis mine]
The notion of profiting from one’s labor is central to the analysis here, as the labor theory of intellectual property rights is one of the foundational principles of American jurisprudence. People should be able to enjoy the "fruits of their labor," especially against those who seek gain without their own labor (or who attempt to "free-ride" on the labor of another), as long as they follow certain procedures, and as long as that profit does not create a creative monopoly against the public interest in the free-flow of creative resources and fundamental rights like free speech. Very early on you see the Court balancing the rights of the creator against the rights of the public in regard to creative works, recognizing that both sets of rights are compelling, even mutually reinforcing.
Such balancing continues in Baker v. Selden, where the Court teased out the distinction between an idea, which is not subject to copyright, and the expression of that idea, which is. As the Court put it in Wheaton, "the identity of a literary composition consists entirely in the sentiment and the language."
Distinctions are important because of the particular nature of the property interests one has in copyright. We routinely talk about "IP theft," but such a term is much more compatible with real property items than intellectual property, per se. In 1985, the Court rejected this characterization in Dowling v. United States, holding that copyright infringement is not the same thing as criminal theft of property as defined by the (then) US criminal code, in part because
The section’s language clearly contemplates a physical identity between the items unlawfully obtained and those eventually transported, and hence some prior physical taking of the subject goods. Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple “goods, wares, [or] merchandise,” interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright, nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.
There is another important aspect of that balance in the Court’s assertion that the copyright infringer does not completely deprive the copyright holder of his/her rights. So while the concept of "theft" might have a certain moral weight, its legal status makes room for lawful uses of copyrighted material like Fair Use.
Fair Use is that particular species of copyright infringement that is permitted in limited circumstances, including education, parody, and a few other areas of public interest. Like all copyright issues, the limits of Fair Use are delineated on a case-by-case basis. And the rules here are everything, because the difference between infringement and lawful use (or Fair Use infringement) can rest on something as simple as proper registration or as complicated as a market competition analysis.
There is, for example, the 1918 case of INS v. AP, wherein the Court held against the International News Service, which had been republishing news stories that AP wrote and published, granting AP an "quasi-property interest" in their news stories, leaning heavily on the logic against free-riding on the labor of the AP reporters who did all the initial work in gathering facts, writing the stories, and transmitting them for publication. Since the INS was basically re-posting the stories for profit, thereby interfering with AP’s potential profit, INS was deemed to be infringing, even though the news itself is generally held to be property of the public domain.
By contrast, the 2002 case of Dastar v. 20th Century Fox held for Dastar, which had taken episodes of a television show that Fox had allowed to pass into the public domain, packaging them in video-tape form and selling them as part of a series on World War II. Fox tried to claim copyright infringement, but since Dastar had used the original TV episodes, which had not been registered for copyright extension and were therefore in the public domain, Dastar was not deemed to have infringed.
Then there is the case of the Gerald Ford memoirs, where Harper and Row had given Time exclusive rights to run an excerpt in anticipation of the book’s publication. In the meantime, however, someone from The Nation got a hold of the manuscript and wrote his own article, utilizing quotes and other things from the manuscript, pre-empting Time’s scoop. While The Nation claimed Fair Use, the Court disagreed, holding that the market effect of The Nation’s article was devastating to Time, as the whole point of the Time piece had been to promote Ford’s memoirs and increase sales of both the book and the magazine. Instead, The Nation basically re-routed that commercial flow in its own direction, for its own profit. Of the four elements in a Fair Use analysis – purpose of use, nature of the copyrighted work, amount and substantiality of the portion used, and market effect – the fourth element dominated the case, in large part because the purpose here was deemed to be commercial. In fact, only 300 words of the memoir as quoted in The Nation article were found to be copyright protected.
We have seen several examples of Fair Use analysis in the fiction community of late, namely the Rowling-RDR case. And now the AP is trying to force bloggers who link to their articles to buy licenses. During the presidential election, both McCain and Obama were subject to requests made to YouTube to take down campaign material on the basis of alleged DMCA violations (which raises substantial First Amendment issues, among others). In fact, as both technology and communication continue to move farther and farther into the digital frontier, there is much concern about the balancing of rights in copyright law, from both content creators and the public. Each side believes that their rights are being unfairly limited, and Congress seems to be more and more likely to amend the copyright statutes as technology evolves. Next time I will focus in on the DMCA and then on the issue of piracy as they each relate to the current balance of rights in copyright law.