Wednesday, December 28, 2005

Justice Rehnquist, Judge Alito, and Section 105

Among the papers released by the National Archives yesterday in connection with Judge Alito's nomination to the Supreme Court is one dealing with an advance on royalties Justice Rehnquist received for his 1986 book, "The Supreme Court, How it Was, How it Is." Here is a link to the memo then Deputy AG Alito wrote.

Aliot assumes that Renhquist worked on the book after hours and without using court personnel to help. Had the contrary been the case, a number of issues would have been raised, including, for copyright purposes, Section 105's ban on protection for "works of the United States Goverment," a term defined in Section 101 as "a work prepared by an officer or employee of the United States Government as part of that person's official duties."

It is highly unlikely Chief Justice Rehnquist's book was done as part of his official duties, but the term has been construed more broadly, as alluded to in the Alito memo. The book was certainly related to Rehnquist's official duties; it is, after all, a history of the very institution he headed. But that is not sufficient to place the work within Section 105.

While there are fortunate souls who have interests outside of their day job and actually follow them, many professionals blur if not eliminate the line between night and day, to invoke the old song. And, given the expertise gathered during the day, as a society, we benefit when such individuals use their off-the-clock time to write about their area of expertise.

The rub comes when government facilities or staff are used, even though the work was created off-hours. Should there be no protection as a penalty, or should other forms of redress be resorted to? In drafting Section 105, Register of Copyrights Abraham Kaminstein favored only some form of small administrative penalty, not loss of copyright.

Moreover, some use of government facilities is not only harmless but should be encouraged, such as use of libraries. And it is hard to say that use of a computer is usurpation of government resources. Photocopy machines are somewhat different, but all employers are aware that employees use them and requiring that employees leave the building and go to a commercial photocopying center is in no one's interest. It is only when other staff or significant resources are used that the issue of a penalty should arise.

2 comments:

Fred von Lohmann said...

Does the Chief Justice of the Supreme Court need a copyright incentive to produce a text about the history of the Court? Especially given the net worth of most members of the Court today, the answer is likely no. Accordingly, I think it is unfairly prejudicial to argue that the denial of copyright here is a "penalty."

Quite the contrary, I see considerable public good stemming from the contrary result. After all, the free publication of a text about the Court, written by the current Chief Justice, would appear to further public understanding of the Court and its place in our political and legal system. And, if experience with the 9/11 Report is any indication, would not necessarily undermine the incentive for paper publication.

And, of course, we ought not indulge the fiction that the Chief Justice completed this enterprise entirely without the help of his position. I trust much of his research was carried out with the assistance of the Court library, librarians, and other resources at his disposal (more than mere photocopiers, I'd venture). If nothing else, his ability to sell the book was deeply tied to his office.

I wonder if anyone thought to ask the Chief Justice to consider releasing under a Creative Commons license? Would publishers really have refused him if he made such a choice?

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