The Unsettled, Unsettling Concept of "Copy"

When speaking of "copyright," one might think that "copy" would be a clear concept. In the past, the word was hyphenated, "copy-right," but even this was ambiguous: did it refer to "copy" as a noun or as a verb? Were we to be concerned with a right in a "copy" or a right to copy? The 1976 Act has a definition of "copies" in Section 101:

”Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

Section 202 makes clear, though, that the intangible copyright is different from the defined term "copy," so "copyright" doesn't technically mean a right in the "copy." (Of course, as long the author, say of a musical composition, doesn't depart with the manuscript on which the piece is written, he or she owns both the "copy" and the "copyright").

The word "copy' is also used in opinions in the infringement context: defendant's work is or isn't a "copy" of plaintiff's, meaning it is or isn't substantially similar. We sometimes also say that defendant didn't "copy" plaintiff's work, meaning defendant's work was the result of independent creation.

Most disturbingly, none of the above possible meanings of "copy" are of sustained vintage or even settled today. For example, in England, until perhaps the 20th century and certainly well past the Statute of Anne (1710), the term "copy" referred to rights in (not just to) the physical manuscript, owned by a member of the Stationers' Company, entered in the Company's register, and resulting in the Stationers' monopoly. This is the sense in which John Milton used the term copy" in his "Areopagitica": "the just retaining of each man his several copy, which God forbid he should be gainsaid." This use of "copy" referred to the right, but it was not an author's right, it was the Stationers,' something even Milton didn't dispute.

The preamble to our 1790 Copyright Act blurred things: "An Act for the Encouragement of Learning, by securing the Copies of Maps, Charts and Books, to the Authors and Proprietors of such Copies, during the Times therein mentioned," but the act itself gave copyright owners the exclusive right to "print, reprint, publish, or vend” the work. As mentioned in Friday's blog, early U.S. courts followed the English practice of permitting fair use and fair abridgments under this and subsequent statutes: even though there were no statutory exceptions to printing, reprinting, publishing, or vending, exceptions were read in to fulfill the statute's purpose. For example, on Friday, I referred to Stowe v. Thomas, 23 F. Cas. 201 (C.C.E.D. Pa. 1853), which excused an unauthorized translation of "Uncle Tom's Cabin" in to German (which many in Pennsylvania still spoke). Here's the court's holding, worth quoting (and note the hyphenated "copy-right"):

A "copy" of a book must, therefore be a transcript of the language in which the conceptions of the author are clothed; of something printed and embodied in a tangible shape. The same conceptions clothed in another language cannot constitute the same composition, nor can it be called a transcript or "copy" of the same "book." I have seen a literal translation of Burns' poems into French prose; but to call it a copy of the original, would be as ridiculous as the translation itself. The notion that a translation is a piracy of the original composition, is founded on the analogy assumed between copy-right and patents for inventions, and where the infringing machine is only a change of the form or proportions of the original, while it embodies the principle or essence of the invention. But as the author's exclusive property in a literary composition or his copyright, consists only in a right to multiply copies of his book, and enjoy the profits therefrom, and not in an exclusive right to his conceptions and inventions, which may be termed the essence of his composition, the argument from the supposed analogy is fallacious. Hence, in questions of infringement of copyright, the inquiry is not, whether the defendant has used the thoughts, conceptions, information or discoveries promulgated by the original, but whether his composition may be considered a new work, requiring invention, learning and judgment, or only a mere transcript of the whole or parts of the original, with merely colorable variations. Hence, also, the many cases to be found in the reports, which decide that a bona fide abridgment of a book is not an infringement of copyright.

As I also mentioned on Friday, this decision was legislatively reversed in 1870, but the question of what constitutes an "infringing copy" is still the province of the courts. The Sixth Circuit, in Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. June 3, 2005) held that the sampling of two-seconds from a sound recording was "copyright" infringement, based, stunningly, on the court's interpretation of what it deemed the "plain" language of the statute, specifically Section 114(b) which gives the copyright owner of a sound recording the right to "duplicate" the sound recording. This is a synonym for "reproduce," which is itself a synonym for "copy" in the verb form of that word. From 1710 forward, "copy," whatever its varied uses, has never been believed to encompass appropriation of two seconds from another's work.

A final issue is that of ephemeral "copies," raised by the definition of "fixed" in Section 101. "Copies" have to be fixed (to be "Writings"), so Congress provided a definition:

A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

This definition was intended to protect authors at the copyrightability stage, but after MAI v. Peak, it has grown into a monstrous weapon by which every act of buffering or caching results in a "fixed" "copy" in the infringement sense of that last term. It beggars the imagination that the Founders would have deemed such acts infringing: they are merely a technological ends to a means.

We may be at the end of the road conceptually and semantically when "copy" can be impressed into banning all sampling and imposing liability for buffering and caching no matter the end purpose.