Thursday, November 17, 2005

Intelligent Design and Copyright Misuse

Jennifer Granick, Executive Director of the Stanford Center for Internet and Society, had a recent article in Wired entitled "Evolutionists Are Wrong!" The lead in the story is this:

"Where are the copyright liberals when right-wing conservatives need us?
Last week, the National Academy of Sciences, or NAS, joined with the National Science Teachers Association, or NSTA, to tell the Kansas State Board of Education that it would not grant the state copyright permission to incorporate its science education standards manuals into the state's public school science curriculum because Kansas plans to teach students that 'intelligent design' is a viable alternative theory to evolution. Kansas is scrambling to rewrite its proposal to win over the NAS and NSTA."

Ms. Granick is apparently no fan of intelligent design theory, but expresses concern that the NAS and NSTA "are using their copyrights to bring wayward Kansas educators into line." She lumps them in with Disney movie trailer licenses that are purported to prevent licensees from criticizing Disney or the entertainment industry; Diebold; Cisco Systems; Scientologists; and NBC as further examples of copyright misuse. She also refers to Judge Posner's suggestion that the doctrine of copyright misuse might be applied in some cases where copyright owners are trying to suppress criticism.

I was counsel for the successful appellant in the case where Judge Posner first raised that possibility, Ty, Inc. v. Publications International, Ltd., and obviously agree with the importance of such a defense. But under what conditions? In the Kansas case, in all of the cases mentioned by Ms. Granick? Should the Kansas case be, as she asserts, "an uncomfortable issue for copyright scholars, who, if they are anything like biologists, presumably disagree with intelligent design?" Should we "have to call the game fairly," as she further suggests? Or, even more boldly, is it "hypocritical to stand by and watch as others use [copyright] to bring the Kansas Board of Education into the scientific fold?" as she asserts?

I certainly agree we should call the game as we see it and try to religiously, but I don't see how that leads to what Ms. Granick apparently wishes, a kind of copyright version of ACLU support for Nazis marching through Jewish neighborhoods. First off, Ms. Granick doesn't spend any time addressing the contours of a misuse defense. Judge Posner and I have jointly written about that issue, and without speaking for him, I don't believe it bears any resemblance to the First Amendment or to what Ms. Granick has in mind in the Kansas case. (Some of the other examples she gives are, however, excellent targets for the defense).

The misuse defense spoken of in the Ty case is intended to prevent copyright owners from using copyright litigation as a way to suppress criticism. In Ty, the allegation was that Ty insisted on a license to make photographs of its three-dimensional dolls. If you wanted to publish a guidebook to Beanie Babies you need to use photos, hence you allegedly needed a license from Ty. The allegation was that the license was a stalking horse for a license provision that gave Ty control over the written content in the guide.

But the Kansas example is very different. The NAS and NSTA are not trying to suppress criticism about themselves or even trying to suppress criticism about their materials. Instead, as I understand it, they are effectively saying, "what you are doing is not science, it is religion. You can't put our material in a book on religion and pretend that the book is about science; its not." I have no problem with that from a copyright standpoint or any other standpoint for that matter. There is nothing stopping Kansas, as I understand it, from publishing two manuals, their own which they can call whatever they want, and a second manual with the NSTA and NAS material used in a real science class. That at least, is what I derive from Ms. Garnick's use of the word "incorporate," meaning the copyright owners' complaint was over their material being bound in a single manual with Kansas' intelligent design material.

If this is right, I would have thought real First Amendment folks would defend NSTA and NAS from being forced to speak in a way they find offensive; there is, after all, a First Amendment right to remain silent. But that aside, I fail to see there is any copyright issue at all, much less one involving fair use. Let Kansas be Kansas if it wants, but it has no right to force NSTA and NAS to share its view by association; that too is a First Amendment right.

You check out Ms. Granick's own blog with comments on the issue here.


Gnuosphere said...

Yes, I don't agree with Jennifer's conflation of the examples she lists with the the NSTA and the NAS. I posted more here a few days ago.

Anonymous said...

But why is Kansas worried about permission? I would think the Florida Prepaid covers any Federal court action under the Copyright Remedy Act, i.e., Kansas would be immune from suit, and even if there was a state takings action, they would only be liable for the license fee, if any. If I am wrong, I'd like to know.

Anonymous said...

It seems Ms. Granick is arguing that misuse should be extended beyond owners using copyright as a tool to restrain criticism of themselves to also encompass situations where copyright is used to coerce a certain viewpoint. In other words, it would be wrong for NAS and NSTA to make their materials available to persons who meet their content guidelines but not to others. With regard to the nature of the right involved, I think it is more analogous to making goods available on equal terms in the antitrust context of the Robinson-Patman Act than the First Amendment analogy. I am not suggesting that copyright law should go in that direction but I do see the concept as having intellectual merit. Although she refers to the misuse examples to support her position, she may be reacting in part to the “information wants to free” camp not rising to the defense Kansas board in a matter that is contrary to the views of most “copyright liberals.”

thevitaminkid said...

Kansas should be used to being criticised by now. They should do as they please -- they have enough state lawyers to deal with the consequences, if any (according to anonymous number 1, they might be immune). This is probably not the place to argue the merits their stance. Suffice it to say that science does encompass the ability to distinguish artificial, intelligently-made phenomena in other fields, e.g. archaeology. (Is an artifact just an oddly shaped rock, or a tool made by an intelligent creature?) Or what about SETI? (How would we distinguish between an alien radio signal and random noise? Is there any science to that? I would think so.) So I don't think Kansas is totally off the wall by saying that not every explanation of every phenomenon has to be 100% natural. Apparently other states do not make this stipulation. Is the NAS having a cow about those states' working definitions of science? Or is the Kansas declaration peculiarly offensive to them? If the NAS is being inconsistent, could that be part of a legal defense?

William Patry said...

the vitaminkid:

Not being a scientist or from Kansas, I wouldn't venture into the merits of their respective sides, but I do think that each side is entitled to prevent their own views free of copyright being dragged in; in other words, NAS can say Kansas can't use our stuff because we don't like the materials you are incorporating them with and be free of a misuse defense.
If Kansas wanted to use NAS materials to criticize the views espoused in them, that would for me, be different.

Anonymous said...

Isn't this more of a Lanham Act 43(a) issue? The NSTA and the NAS don't want to appear by association to endorse what they perceive to be anti-scientific views. That’s not copyright misuse. Or is it similar to the functional droit morale rights inherent in the copyright grant; for example, I will not license my music to your movie because I hate you as an artist and you can't make me, so there! That's not copyright misuse. Why in the world would an attempt by Ty to preclude Beanie Baby criticisms by having their own animals thrown at them or the NSTA saying to Kansas you can't have our stuff anymore even if you want to pay for it have anything whatsoever to do with copyright misuse? In both cases a huge presumption is being made that the offenders' acts of suppression are harmful to dialogue. The objection can't be that the acts are just harmful to the potential licensee/user. Otherwise every license declination would be a misuse. Every right under copyright would have a de facto compulsory license for users. So where in world of copyright is there a clause protecting open dialogue? If it ain't fair use, that should be the end of the discussion.

William Patry said...

I am very much in favor of dialogue and would be happy to see Kansas create their own work and in that work criticize NAS, or vice versa. That would be a fair use. But what I have been assuming is going on is Kansas wanting to reproduce NAS's stuff in toto with any comment.

Gnuosphere said...

Here is my solution.

Anonymous said...

I am sure that you did not intend it, but any implication that those who advocate for intelligent design in public education are like nazis marching in Jewish neighborhoods is unfortunate.

Intelligent design may be mistaken, but it is not murderous. Intelligent design may even be a stalking horse for teaching about God, but the belief that public schools teach an ideology of atheism which needs to be replaced by an approach more open to theism is not wicked, however mistaken.

Thanks again for your great blog, which has revived my love for copyright law.


William Patry said...

You are definitely correct that the intent of my reference to the ACLU was quite otherwise. In fact, it had nothing to do with those supporting intelligent design.
Rather I was referring to Jennifer's suggestion that liberals should support Kansas because it is the liberal thing to do.
I am very happy you are enjoying the blog. It is a tremendous experience for me and I am grateful for all the comments.

E. Bryant said...

I think Ms. Granick's point still has some merit. Why would the concept of copyright misuse simply be limited to efforts to stop criticism? Isn't that awfully narrow? There are many examples that I would consider copyright misuse that don't involve efforts to stop or prevent criticism. For me, the NSTA/NAS example would turn on what the fact finder found. If their motivation was an objection to the incorporation of the material, then no misuse.

HYPO: Suppose a condo maintaince company writes up a set of model bylaws for condo associations and, while it claims a copyright in them, offers a free license every year when a condo reissues its bylaws. It even allows condos who don't hire them to use the bylaws. Many condos make minor changes to the bylaws, but the company never objects. One of the condos sues the maintaince company over some unrelated matter. One day later the maintaince company sues the condo, claiming they are infringing their copyright because it did not authorize the changes the condo has made to its bylaws.

Is the condo technically violating copyright? Yes.

Does the company have a right to prevent unauthorized changes? Yes.

Is the protection of its copyright the company's real motivation in filing suit? Probably not.

If the real motivation was to pressure the condo to drop its suit, would it be copyright misuse? I would say yes.