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Copyright and Consumer Digital Rights, Part 2

Sunday Pop Quiz

How many books are currently in the public domain and available online?

  1. About 10,000
  2. About 50,000
  3. 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.

isn't sure if she's an average Romance reader, or even an average reader, but a reader she is, enjoying everything from literary fiction to philosophy to history to poetry. Historical Romance was her first love within the genre, but she's fickle and easily seduced by the promise of a good read. She approaches every book with the same hope: that she will be filled from the inside out with something awesome that she didnʼt know, didnʼt think about, or didnʼt feel until that moment. And she's always looking for the next mind-blowing read, so feel free to share any suggestions!


  1. Suze
    May 10, 2009 @ 08:24:21

    I apologize if you’ve written about this before, I’m not terribly skilled at navigating archives. Do you have a comment on the Authors Guild vs Google case? The first I ever heard about it was at, written about by Mike Briggs (husband to Patricia), and if his interpretation is correct, there are huge implications for writers with works that have been out of print for a year (the new definition of orphaned work).

    Since the Authors Guild now legally represents all authors, they have proposed a handy end-run around all that bothersome copyright law. Google may scan all the orphaned works it can find, without the need to either contact the authors or negotiate terms of use.

    I think this means Google becomes the defacto e-publisher for everybody, once a book has been out of print for 12 months, for a more-or-less static (and low) fee, based on whether the author has registered his/her rights appropriately. Which is making me goggle.

    The Authors Guild website says

    Rightsholders will receive a share of revenues from institutional subscriptions to the collection of books made available through Google Book Search under the settlement, as well as from sales of online consumer access to the books. They will also be paid for printouts at public libraries, as well as for other uses.

    The payments will flow through the Book Rights Registry, a new independent entity that can be thought of as the writers' equivalent of ASCAP.

    The upshot is, I am confused, and a little concerned. Even though I don’t currently own any rights to published works.

  2. Jane
    May 10, 2009 @ 18:02:02

    I think the amelioration of consumer rights in the digital age is quite scary and nothing short of a congressional act is going to tip the scales, in my opinion. I’m not sure what will come of the online town hall that the FTC sort of held, but hopefully someone is hearing the voice of the consumer.

  3. GrowlyCub
    May 10, 2009 @ 18:20:42

    Jane, I’m not sure I understand what you mean by ‘amelioration’, could you rephrase? Vocabulary issue on my part!

  4. Jane
    May 10, 2009 @ 19:46:24

    @GrowlyCub The erosion of rights, I guess is another way to put it. In other words, we are giving up the right of first sale, the right of sharing, the ability (although not a right) to return. Digital is far riskier to a consumer yet the current landscape of the law doesn’t really appreciate that and laws are supposed to be about protecting consumers, balancing risks, and placing the burden on the entities most able to bear it.

  5. GrowlyCub
    May 10, 2009 @ 20:16:44

    Thanks, Jane. I thought that’s what you meant, but I understood ‘amelioration’ to convey a positive sentiment so that confused me.

    Apart from that, I absolutely agree with you. I’m really freaked out by the Amazon Kindle for textbooks idea and the Google deal. I still cannot figure out for the life of me how any court or any government anywhere on the planet could agree that it’s within Google’s right to basically steal out-of-print books with the eventual goal of making money off them on the backs of the copyright holders.

  6. Jane
    May 10, 2009 @ 21:00:23

    @GrowlyCub hmm. yes it does have positive connotation. I wonder what word I meant to use. LOL.

  7. LindaR (likari)
    May 10, 2009 @ 21:50:34

    “mitigation” perhaps?

  8. Janine
    May 11, 2009 @ 11:48:58


    We’ve had a few pieces on the Google and Writer’s Guild case. The most recent was this one. If you put “Google” and “Writer’s Guild” in the search engine, you will find at least a couple of others.

  9. Writing Roundup, May 15 « Jen’s Writing Journey
    May 15, 2009 @ 05:10:09

    […] Copyright and Consumer Digital Rights, Part 2 At Dear Author, we get an interesting survey of court cases that affect our ability as writers to own our words and our ability as citizens to access those words freely. If you missed part 1, read it here. […]

  10. Mason Parker
    Jul 23, 2010 @ 09:46:54

    intellectual property is not really respected in most countries in asia where piracy is so rampant.~;’

  11. Corner Cabinet
    Dec 15, 2010 @ 23:39:20

    in China, they do not respect intellectual property at all. too many software and movie pirates out there ~-;

  12. Writing Roundup, May 15 « Uncategorized « Jen's Writing Journey
    Jan 07, 2011 @ 18:41:37

    […] Copyright and Consumer Digital Rights, Part 2 At Dear Author, we get an interesting survey of court cases that affect our ability as writers to own our words and our ability as citizens to access those words freely. If you missed part 1, read it here. […]

  13. Royal Amormino
    Sep 02, 2011 @ 16:17:40

    Hey there and good day! Excuse me as my english aren’t excellent, however I have to say that the post is very insightful indeed. Thanks for the data, and if you are willing, can we in-change hyperlinks too? Let me know.

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