Monday, October 31, 2005
Here’s a brief review of the Southco case. The claim was in the parts numbers (for “captive” fasteners), not in the compilation thereof. Examples of the numbers are:
47 – 10 – 202 – 10
47 – 11 – 502 – 10
47 – 10 – 502 – 50
47 – 12 – 502 - 50
47 – 62 – 501 - 20
In this sequence, 47 tells one that the part is captive fasterner. The other numbers refer to the thread size, the composition of the screw (e.g. aluminum), and the finish of the knob. Defendant was alleged to have copied 51 of plaintiff’s parts numbers. Applying Feist, the panel, per Judge Alito, found that “the creative spark is utterly lacking in Southco’s parts numbers and [thus] these numbers are examples of works that fall short of the minimal level of creativity required for copyright protection.” The basis for this conclusion was set out in the court’s factual description of plaintiffs nine-digit code.
The Southco’s panel’s denial of copyright was based on the parts numbers as an inevitable sequence dictated by the logic of the parts system. Subsequently, the Third Circuit granted a petition for rehearing en banc. Judge Alito began his opinion for the en banc majority by again reviewing the Feist originality standard and concluding that “the Southco product numbers are not ‘original’ because each number is rigidly dictated by the rules of the Southco system.” He acknowledged that Southco could have assigned different numbers than it did, and that it could have chosen to include different characteristics in the system. But, having made its choice, “the system was in place, and all of the products in the class could be numbered without the slightest creativity.” That seems factually and legally true. The “descriptions” are strictly sequential and matched with increasing incremental “values.” The concept of numbering registers and descriptions in ascending sequence is analogous to arranging telephone entries in alphabetical order.
Judge Alito, citing the author of this blog, then offered an alternative ground for the lack of protection, namely, that the parts numbers were analogues to short phrases or titles. The Copyright Office also took this position. This part of the opinion drew a concurring opinion by Judges Becker, McKee, and Smith. Judge Becker agreed with defendant that parts numbers were not “phrases,” a term he apparently reserved for words. As Judge Becker saw the matter, “the problem … is whether the Southco part numbers are words, short phrases, names or titles, or whether they are instead a compilation of data, a classification, or something else.” Judge Becker answered his own question regarding Southco’s numbers by describing them as “seem[ing] to fall into the gray area between a short phrase and a more extensive work,” in other words, “something else.”
Judge Becker makes a point, but it is at best one of how to classify unprotectible material. Ironically, Judge Becker’s preferred method of classification was far more strained than calling parts numbers short phrases: His approach was to regard them as scenes a faire.
Judge Becker came out the same place that the majority did – initial constraints precluded originality – but merely gave a different label to the rationale for the denial of protection. Judge Becker’s reliance on industry standards appear to be off-point, though, since he focuses on what the numbers designate, rather than the originality in the designation of the numbers themselves. Judge Alito's approach is more straightforward legally and more consistent with the facts.
There was a dissent, written by Judges Roth and joined by then Judge Chertoff who has gone on to such distinguished service as the Homeland Security chief. Judge Roth’s opinion focuses on the arbitrary nature of Southco’s selection. Her view is worth quoting for what it demonstrates about Judge Alito, who rejected it:
"[T]here is nothing pre-determined about the length of a part number. For instance, Southco could choose to use more than nine digits to accommodate products with too many values to be easily expressed in only nine. These seem like relatively mundane choices, but, as the Supreme Court indicated in Feist, ‘the requisite level of creativity is extremely low; even a slight amount will suffice.’”
While the dissent’s point about the number of digits being a matter of some discretion has some merit, the amount of such discretion was quite limited (you couldn’t choose less than seven, and Southco admitted that if it had used a ten-digit system, it could have also used a standard numbering format). But most importantly, after the original set of numbers was determined (whether 5, 7, 9, or 10 digits), all subsequent entries followed automatically. In essence, Southco was claiming protection for the original selection of the number of digits used. Whether regarded as de minimis or unoriginal, those nine numbers were sparkless. Judge Alito’s majority opinion is correct and reflects a view of Feist most copyright lawyers should prefer.
These non-lawyers have in turn, helped produce much better scholarship by copyright lawyers, and I heartily recommend Professor Michael Carroll's 2005 "The Struggle for Music Copyright" as an example of the best of the new scholarship. While it may seem harsh or disrepectful to say so (and neither is my intention), the works of the late L. Ray Patterson, such as his 1968 Copyright in Historical Perspective, fall into an all-too-common pattern found in historical writing on copyright.
Professor Patterson read back into the entire history of copyright what was no more than a pet theory about access and fair use, dressed up as history. His reading back in history began with an inaccurate view of copyright as the stepchild of censorship (based on equating the Stationers Company's licensing acts as the parents of the Statute of Anne), went through a misunderstanding of the 1909 Act, and straight into his conclusion that things had gone very awry in the 1976 Act. I debated him once in the mid 1980s, purely on historically verifiable points, and his lack of knowledge should have been humiliating, but it left him undeterred in continuing to press the same points that were shown to be demonstrably false (e.g., that unpublished television programs weren't protected under the 1909 Act; they were): grand theories aren't easily shaken, or as my late mother (aleha hashalom) would say when backed into a corner: "Don't confuse me with the facts."
Another grand theory places the transition from royal privileges and monopolies (like the Stationers' Company) to Statutes like Anne, our 1790 Act, and the 1791 and 1793 French copyright acts as being the result of the rise of the Romantic author. This is hooha, and to me it marred early interdisciplinary approaches to authorship and originality. Why, for example, were there royal privileges granted to music until the 1770s in England, six decades after the Statute of Anne if the Statute of Anne represented the end of the old order and the dawn of the new, author-centric era? Why did works of great classical beauty like sculpture not receive copyright until the end of the 19th century, and choreography in the United States until the 1950s? Why was there no true copyright law in Germany (the land not the nation) until the 19th century?
Technological determinism is another grand theory: copyright arose out of the printing press and every new technological development brings about a new "paradigm shift"(to use Kuhn's well-known term sarcastically), from photocopy machines, to VCRs, and of course the Internet. A careful review of the historical record, now being done, is beginning to give us a fuller and therefore better picture. And for that, we can largely thank cultural historians, so I do. Thanks and please keep going.
Friday, October 28, 2005
In 1990, Judge Pierre Leval wrote his path breaking article, "Toward a Fair Use Standard," 103 Harv. L. Rev. 1111 (1990), in which he proposed the term "transformative use,":
"The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story's words, it would merely "supersede the objects" of the original. If, on the other hand, the secondary use adds value to the original -- if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings -- this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society. Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses."
Note that Judge Leval's description begins with the word "productive."In Ty, Inc. v. Publications Int'l, Ltd., which I argued before the Seventh Circuit, Judge Posner took issue with at least the term "transformative use," and perhaps more:
"The distinction between complementary and substitutional copying (sometimes--though as it seems to us, confusingly--said to be between "transformative" and"superseding" copies, see, e.g., Campbell) is illustrated not only bythe difference between quotations from a book in a book review and the book itself ... but also by the difference between parody (fair use) and burlesque (often not fair use). A parody,which is a form of criticism (good-natured or otherwise), is not intended as a substitute for the work parodied. But it must quote enough of that work to make the parody recognizable as such, and that amount of quotation is deemed fair use. A burlesque, however, is often just a humorous substitute for the original and so cuts into the demand for it: one might choose to see Abbott and Costello Meet Frankenstein or Young Frankenstein rather than Frankenstein, or Love at First Bite rather than Dracula, or even Clueless rather than Emma. Burlesques of that character, catering to the humor-loving segment of the original's market, are not fair use."
Some may disagree with Judge Posner's binary movie examples, and I would be interested to know how such disagreements impact on one's assessment of his approach in general. I am also interested in how helpful the use of such labels is. "Transformative" seems to imply actually changing the original, although a book review, a classic fair use, doesn't. "Productive" use seems to apply the same type of concept, while "complementary" might be construed as too narrow. So any of these labels cover (affirmatively or negatively) uses of works as in Google? How much help are they? Why do we use them, and can we live, profitably without them?
Thursday, October 27, 2005
Logicians have long pointed out that one problem with dichotomies is that they create two mutually exclusive categories: A and not A. These two categories cannot share features. Because they are different, one must develop fairly rigorous ways to define the characteristics that define the two categories. The messy nature of facts throws a monkey wrench in many attempts to create tight dichotomies in law, and that's one reason a number of judges, such as Judges Easterbrook and Jon Newman have rejected Nimmer's assertion that there is an "abstractions" "test" (derived from a misreading of Learned Hand); they reject the test approach and favor the continuum concept, by which courts don't dichotomize the inquiry but instead examine the degree of protection.
In the area of compilations, though, identifying idea and expression has proved particularly difficult because the basis for protection is shaky, certainly since Feist threw out sweat of the brow. One concern is that the idea of a compilation might be defined in a way that will eliminate protection, as when we say the idea is to compile data on all households in Ohio who voted for George Bush in 2004 and who had family members killed in Iraq. Certainly we don't want to give a monopoly for that alone, and perhaps there will be protection in arrangement of the data.
But here, there are verifiable facts: the household had members who either voted for Bush or didn't, and if so, either had members who were or were not killed in Iraq.
Some compilations contain different types of data, and here is where the fact/value dichotomy comes into play. If I compile a book about estimated car values, as in CCC Information Services, Inc. v. Maclean Hunter Market Reports, Inc., 44 F.3d 61 (2d Cir. 1994) are those estimates facts or the exercise of judgment? The same applies for coin prices, CDN Inc. v. Kapes, 197 F.3d 1256 (9th Cir. 1999). Perhaps more easily, what if I select my favorite restaurants, as in Adventures in Good Eating, Inc. v. Best Places to Eat, Inc., 131 F.2d 809 (7th Cir. 1942). Am I out of the realm of objectivity and into the realm of judgment and therefore protectibility?
Wikipedia gives a summary of the fact/value dichotomy, while British philosopher Hilary Putnam in his November 2000 Rosenthal Foundation Lectures at Northwestern Law School, "The Collapse of the Fact/Value Dichotomy attacks the very basis of the dichotomy as predicated on unsustainable views of facts as always being objective and value judgments as always being subjective. This is the problem of accurately defining the characteristics of A and not A. Putnam also attacks the dichotomy as being a "thought-stopper," by which he refers to the phenomenon I noted at the outset: once a dichotomy is regarded as being preexisting, courts may regard their job as merely one of classification.
This doesn't mean the problem of protecting some material and not other material goes away; it only means that we should think things through for ourselves, perhaps based on the underlying purposes for protection. When we get to compilations, what is the goal, the purpose? Do we want to base protection on predictions of prices or valuation (in the different sense of monetary worth)? What about compilations of assessments of taste or aesthetics, what makes them so different that they become acts of authorship?
Tuesday, October 25, 2005
"Contrary to the opinions of a number of readers, I am not a law breaker.
At least, I don't think I am. In a recent column about my transition to an all-digital music collection, I mentioned a plan to sell my CDs after creating digital copies on my personal computer. Quite a few readers wrote to tell me this would be illegal. If you sell the CD or give it away, they informed me, you must delete the digital versions, as the rights to keep a copy of the song reside with the owner of the CD. Was this true? What if I have a 10-year-old CD, with a couple of songs I enjoy? Does that mean I am breaking the law if I keep those songs on my iPod after selling the CD for $1 at a garage sale? I decided to investigate. As is the case with many legal issues, a clear answer wasn't readily available. But at least it is now clear to me how hazy an issue it is. "The law is terribly unclear on this question," says Fred Von Lohmann, a staff attorney for the Electronic Frontier Foundation, a nonprofit advocacy group for consumers' digital rights. "It's very hard to give any kind of clear answer."
Courts might view the situation differently, depending on an individual's behavior, he says. Are you a "buy, rip, and return kind of guy," essentially making digital copies from CDs and then returning them? Or are you, like me, getting rid of physical CDs that you no longer use, simply because you have the music on your computer and you now buy songs from the iTunes Music Store? "The law gives precious little clarity to the average person," Von Lohmann says.
An academic specialist in cyberspace aspects of intellectual property echoed Von Lohmann's views. Whether you can keep digital music files on your PC or iPod after you sell your CDs is legally "untested," says R. Anthony Reese, a law professor at the University of Texas at Austin. Reese says he doesn't know of any court cases dealing with this scenario.
Given existing copyright law, he says, it is "not easy to predict how a test case would come out."
Yet the issue isn't a purely academic one. More and more people are facing this dilemma, as they have no use for the CDs taking up space in the bulky, archaic racks in their living rooms. They use their iPods to listen to music on their home stereos, cars, and elsewhere.
Do they really need to store their CDs in their attics in order to avoid breaking the law?
Yes, according to music industry representatives, though they were unable to provide any real legal backing for that view.
A spokesperson for the Recording Industry Association of America, the group known for filing lawsuits to stop digital-music swapping, pointed me to a document from the Copyright Office to support the idea that you aren't allowed to keep a digital music file once you sell the physical CD. But the document -- see for yourself, [DMCA Report Executive summary, my link]-- sheds little, if any, light on the issue. I e-mailed a top industry executive, whose assistant contacted me to say my rights to digital music would end when I sell the physical CD. But the executive was apparently wary of expressing that view in public, as his assistant suggested I refer to him as "an unnamed industry source." A spokesperson for Warner Music Group referred me back to the RIAA.
But the industry's message, that you must be wary about what you do with music you store on your PC, is clearly making it out there, judging from the e-mails from readers who were convinced that what I was doing was illegal. Don't expect to hear about a resolution to this issue anytime soon. The music industry is unlikely to press it in court, what with its other concerns. But if it is discussed, you will be sure to hear about it at LawMeme (research.yale.edu/lawmeme/), a Weblog covering the intersection of law and technology.
TECHscan Political news junkies have yet another source: C-SPAN's CapitalNews (www.capitalnews.org), a news operation that's designed for people who want to keep tabs, 24/7, on what's happening on Capitol Hill, the White House and the national political scene.
Allan Hoffman may be reached at email@example.com or in care of The Star-Ledger,
1 Star-Ledger Plaza, Newark, N.J. 07102. "
Here's my reaction to the story: If one links on to the Executive Summary to the Copyright Office's DMCA report provided above, at pages 6-8 , you will find discussion of a proposal to amend the first sale doctrine in Section 109 to provide that where someone's lawfully made copy for 109 purposes was in digital form, that copy could be transmitted to a friend etc., so long as the "original" digital copy is deleted. The Office agreed that the current Section 109 is technologically neutral; that is it applies to lawfully made digital copies, but it declined to endorse the proposal both because of perceived differences in the way hard copy and digital copies degrade and because of doubts about verification of deletion.
But nothing in the report, or the law I am familiar with, says that if you own a lawfully made hard copy, like a CD, and you then make, for personal use, a digital copy, you can't sell the CD. Of course you can. You can sell your lawfully made CD even if the making of your digital copying is illegal: absent some contract provision, the two issues are totally separate.
Monday, October 24, 2005
Act didn't expressly require fixation, since generally it was limited to published works, the requirement was impliedly obvious. In a 1961 report to Congress on the revision of that Act, Register of Copyrights Abraham Kaminstein wrote it was "well established" that for a work to be a "writing," it had to be "fixed in some tangible form from which the work can be reproduced," 1961 Report at 9. (This belief, by the way, is why the bootleg statute in 1994 was enacted under the Commerce Clause).
In the 1976 Act, the concept of "copy" is intimately intertwined with that of fixation, since the definition of copy reads:
"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.
The definition of "fixed" in turn references "copy":
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.
So why the definitions? The definition of copy came first, in 1965, in order to draw a distinction (made eventually in Section 202) between the material object and the intangible property. The definition of "fixed" came in 1966, in conjunction with the addition of audiovisual works as a separate category of subject matter in Section 102, and was intended to exclude from protection purely evanescent images. "Fixed," therefore, had to do with protectibility, and "copy" had to do with the difference between object and subject.
Both terms, have, however, had their greatest application for a very different and one would have expected, controversial purpose, infringement. The bellweather of the storm is the 9th Circuit's opinion in MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993). That opinion held that the internal creation of a "copy" of software in RAM for diagnostic purposes was an infringing (as outside of a license) copy. The relevant discussion is surprisingly brief:
"Peak argues that this loading of copyrighted software does not constitute a copyright violation because the "copy" created in RAM is not 'fixed.' However, by showing that Peak loads the software into the RAM and is then able to view the system error log and diagnose the problem with the computer. MAI has adequately shown that the representation created in the RAM is 'sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.'"
This approach confuses "fixed" and "copy" for protectibility purposes with "copy" in the infringement sense. The concept of "copy" in the infringement sense predates the definition of "copy" in the 1976 Act by over two hundred years, and as noted last week, has had, historically, a limited application; that is, many substantial reproductions (like fair abridgments and translations) were not deemed a "copy" at the infringement stage, even though the unauthorized work was quite fixed.
The 9th Circuit falsely conflated two very different concepts. The first concept is the degree to which an original work is a will-o'-wisp. The second concept is whether a concededly protected work has, to a material degree, been reproduced. The 9th Circuit and its progeny have assumed that because a temporary copy usually is of the entirety of the work, there is no question about it being a "copy" in the infringement senses. I think that is not necessarily true. Why, for example, shouldn't the infringement concept of "copy" take into account, as it historically did before 1976, a host of policy considerations such as the purpose of the copying and the benefit to the public from the use? It is not, fair use, by the way, that has a monopoly on such policy considerations; another example is the idea-expression dichotomy, a common law foundation of copyright.
The contours of "copy" in the infringement sense is a third example. Importantly, Congress declined to include a definition of infringement, that is "copy" in this sense, preferring to leave the matter up to the courts to handle in a common law manner. How bizarre, then, that a definition of "copy" included for a different purpose has not only come to serve as a definition Congress declined to provide, but, like Section 107, has served to prevent courts from continuing as common law adjudicators when new technological challenges are presented.
The critical error in the 9th Circuit's analysis, then, is that "copy" for infringement purposes is a common law concept; it is not co-extensive with (and maybe does not overlap at all) with the statutory definition, which is concerned with something else entirely. There is another parallel with fair use. The statutory recognition of fair use has had a devastating impact, misleading some courts into thinking Section 107 "codifies" fair use and leading to a 4-step by-the-numbers analysis. Instead, courts should view fair use for what it is, a common law concept; while courts must glance at the statutory factors, they are not bound by them and can find them helpful, determinative, or unhelpful, and they can create and apply their own considerations.
If defendant's "fixation" is evanescent, as in buffering or caching why, for infringement purposes, should it be deemed a "copy"? Such copying is not being done for its own value, but rather to facilitate a non-infringing use, such as a licensed public performance. Might not the same be true for intermediate copying and other copying technologically necessary for non-infringing activity (like limited searching of books)?
Thinking of "copy" all the lines suggested here would be more consistent with the historical meaning of the term, the purposes of copyright, and the purposes for the definitions of "fixed" and "copies." It is the 9th Circuit's approach that is revolutionary.
Thursday, October 20, 2005
As a term in art history and criticism refers to the more or less direct taking over into a work of art of a real object or even an existing work of art. The practice can be tracked back to the Cubist collages and constructions of Picasso and Georges Braque made from 1912 on, in which real objects such as newspapers were included to represent themselves. Appropriation was developed much further in the readymades created by the French artist Marcel Duchamp from 1915. Most notorious of these was Fountain, a men's urinal signed, titled, and presented on a pedestal. Later, Surrealism also made extensive use of appropriation in collages and objects such as Salvador Dali's Lobster Telephone. In the late 1950s appropriated images and objects appear extensively in the work of Jasper Johns and Robert Rauschenberg, and in Pop art. However, the term seems to have come into use specifically in relation to certain American artists in the 1980s, notably Sherrie Levine and the artists of the Neo-Geo group particularly Jeff Koons. Sherrie Levine reproduced as her own work other works of art, including paintings by Claude Monet and Kasimir Malevich. Her aim was to create a new situation, and therefore a new meaning or set of meanings, for a familiar image. Appropriation art raises questions of originality, authenticity and authorship, and belongs to the long modernist tradition of art that questions the nature or definition of art itself. Appropriation artists were influenced by the 1934 essay by the German philosopher Walter Benjamin, The Work of Art in the Age of Mechanical Reproduction, and received contemporary support from the American critic Rosalind Strauss in her 1985 book The Originality of the Avant-Garde and Other Modernist Myths. Appropriation has been used extensively by artists since the 1980s."
A more thorough description can be found at this Wikipedia article. A Harvard Art Law site also has a lot of information, including pictures of the Koons case discussed below.
The practice of appropriating others' images is quite old, and can be seen in a interesting sequence involving Raphael's "Judgment of Paris (1515). One of his colleagues, Marcantonio Raimondi made an etching of it that became quite popular. Raimondi's etching was then copied by Marco Dente da Ravenna. Three decades later, Claude Manet copied from Raphael et al, a group of three figures for his famous work "Le Dejeuner Sur l'Herbe," which has itself been parodied a number of times.
Courts have not, though, been receptive to fair use appropriation art claims. In Rogers v. Koons, the Second Circuit came down hard on Jeff Koons for his appropriation of a photograph, which he had Italian sculptors turn into three dimensional form. When I worked for the House of Representatives, we had a hearing at which the photographer, Art Rogers testified, and we had on exhibit in the hearing room the Koons sculpture. The Koons case was a cause celebre in the New York art scene, which was outraged by the court's condemnation of Koons as a pirate flying the flag of the Jolly Roger. Part of the outrage stemmed, I believe from a failure to appreciate that art criticism and law travel different paths: a judgment that a work is infringing (not fair use) doesn't mean the court is rendering an artistic judgment. Another problem is a belief that if something is viewed by the art community as art, it can't be infringing. This is explored in an article by William Landes (a frequent co-author with Judge Posner) Copyright Protection and Appropriation Art.)
But there is a perspective brought to bear by the art community that deserves consideration by courts, and that is the conflation of originality, author, and copy into a reflexive need to protect copyright owners against wholesale reproduction that might be viewed as conceptually transformative in the appropriation art sense of that term. Might some conceptual appropriation provide new insights into the original? If so, we might think twice before legally condemning it.
Still, it must be noted that the art community is itself divided on appropriation art, with some artists whose works have been appropriated viewing the appropriators as destroying art. Here is an article from the October 13, 2005 issue of ArtsJournal.com that explores the divided views within the art community (scroll to the end of the article.)(Courtesy of Virginia Rutledge of Cravath, who on November 10th in NYC is co-chairing with Paul Winick of my firm a program about Fair Use issues in visual art at the City Bar Association. The program is going to consist of an art historian's presentation of appropriation in art and brief presentations of legal principles in copyright, trademark and right of publicity, followed by a panel discussionwith me, Larry Lessig, New York Times art critic Roberta Smith and two art world representatives, David Ross, former director of the Whitney, and Joel Wachs of the Andy Warhol Foundation).
This division of opinion within the art community is interesting for another reason: artists have been the most fervent advocates of moral rights, which are based on the Romantic inseparability of the artist and his or her work. Appropriation art seems to deny that connection, and with it the concepts of author and originality. But can one have it both ways? Can one have moral rights without authors, works, and copies?
Tuesday, October 18, 2005
"Philosophical naturalism and teleology investigate the existence or non-existence of an organizing principle behind ... phenomena. Philosophical naturalism asserts that there are no such principles. Teleology asserts that there are.
Thus, within philosophical naturalism, man sees because he has eyes. Within teleology, however, man both sees because he has eyes, and has eyes so he can see. As Aristotle wrote in support of teleology, 'Nature adapts the organ to the function, and not the function to the organ' ... Lucretius replied in support of philosophical naturalism: 'Nothing in the body is made in order that we may use it. What happens to exist is the cause of its use.'
There have been a number of efforts to impose a teleology on the emergence of copyright and authors. Some commentators (authors?) have attempted to explain copyright - by which they mean an author-centered system of rights - in an historical manner. They argue that at least in England, copyright was the result of the coalescing of Protestantism, a mature book trade, the development of "respectable" writers, and of Parliament's deregulatory desire to repeal the Stationers' Company monopoly. This is a "moment in time" approach: copyright was the inevitable result of a number of pressures, with the organizing principle being the desirability of authors selling the fruits of their labor in commerce without fear of piracy.
Another telelogy is that of the Romantic author, copyright as recognition of genius. Martha Woodmansee, in "The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the 'Author," Eighteenth-Century Studies 17 (Summer 1984), wrote that there was a "pressing need of writers in Germany to establish ownership of the products of their labor so as to justify legal recognition of that ownership in the form of a copyright law." This is of course circular: German writers adopted the position that they created "original" works in order to justify owning original works, and such ownership is acquired by creating original works. Circular or not, there is no denying the appeal of Romantic originality as a powerful teleology.
The U.S. Supreme Court has engaged in its own circular construction of the the Copyright Clause of the Constitution. That clause empowers Congress to grant exclusive rights to the "Writings" of "Authors." What are "writings" and who are "authors?" As it turns out, writings are what authors create, and to be protected those writings must be "original," at least that what the Court said in The Trademark Cases, 100 U.S. 82, 94 (1879). This point was reinforced in Feist, where Justice O'Connor wrote: "For a work to be classified 'under the head of writings of authors,' ... originality is required." 499 U.S. 340, 346, citing The Trademark Cases. This collapses three concepts into one, and an undefined one at that.
So, do we have copyright because we have authors or do we have authors because we have copyright, or, should we just all become philosophical naturalists?
Monday, October 17, 2005
”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.
Friday, October 14, 2005
The English courts excused, on policy grounds, reviews, quotations, satires and the like under what we would today call fair use, but they also created a closely related exception called "fair abridgment." We would call a fair abridgment an infringing derivative work today, although it is only since 1909 that there was a general derivative right in the United States. Fair abridgments were recognized as early as 1740. For example, in Dodsley v. Kinnersley, Amb. 403 (1761), plaintiff was the assignee of Samuel Johnson, and published a two-volume edition of Johnson's fiction. Defendant printed one-tenth of this work in a magazine. The Master of Rolls said, in language strongly reminiscent of that found in modern copyright cases, "No certain line can be drawn, to distinguish a fair abridgment; but every case must depend on its own facts." Defendant won.
The more famous formulation is that of Lord Ellenborough in Cary v. Kearsley, 4 Esp. 168 (1803): "That part of a work of one author is found in another, is not itself piracy, or sufficient to support an action; a man may fairly adopt part of the work of another; he may so make use of another's labours for the promotion of science, and the benefit of the public. ... While I shall think myself bound to secure in every man the enjoyment of his copyright, one must not put manacles on science."
Cary v. Kearsley and fair abridgment cases were adopted in the United States, even though concern was expressed about loss of both the original and derviative markets, see Lawrence v. Dana, 15 F. Cas. 26 (C.C.D. Mass. 1869). And there was good reason to be worried about market impact in eras on rampant piracy. In his epic 1998 book, The Nature of the Book: Print and Knowledge in the Making, University of Chicago professor Adrian Johns details the period in the late 17th century when abridgments came out so quickly that the original could not compete. Samuel Johnson's only advice (which the Dodsley case above illustrates was sound) was to abridge the abridgements. (He also advocated donating any profits from the abridgment to the abridgment to penitent prostitutes. Johns page 456). Another problem with abridgments was their distortion of the author's meaning, and this was a serious issue, especially with scientific works like those of Newton, which existed in many unauthorized and inaccurate versions.
The line between fair use and fair abridgment was thin, though, as noted by Judge Jon Newman in Twin Peaks Prods. Inc. v. Publications International, Ltd., 996 F.2d 1366, 1375 (2d Cir. 1993): "Interestingly, the origin of the fair use doctrine is closely connected to abridgments, and early cases went so far as to suggest that an abridgment always constitutes fair use, at least one that is 'a real and fair abridgment' displaying 'the invention, learning, and judgment' of the abridger, and not merely an instance of a work that has been "colourably shortened." See Gyles v. Wilcox, 26 Eng. Rep. 489, 490, 2 Atk. 141, 143 (1740) (No. 130). "
In the current climate of one note constituting infringement of a sound recording, one wonders whether we have lost sight of the principles that seemed so clear to English judges of yore. This is not say that abridgments of the kind that bedevilled Samuel Johnson and Newton should be encouraged, but somewhere along the way, and quite recently, we adopted a very different view of intellectual property, one in which those who use parts of a work are per se deemed infringers unless they can skate through on some "technicality," like fair use, and only rarely then in order not to disturb property rights.
Wednesday, October 12, 2005
The phrasing of the Copyright Act doesn't help matters. Section 106 is the basic grant of rights, and it is very broadly phrased. But there is a catch: Section 106 begins: "Subject to sections 107 through 122...." The Section 106 rights are thus limited by those sections. Those sections begin with something like Section 107 does: "Notwithstanding the provisions of Section 106, the fair use of a copyrighted work ... is not infringement." If something is not an infringement, must it be pled as an affirmative defense?
An affirmative defense is usually regarded as something that comes into play only after plaintiff has made out its prima facie complaint; defendant then says, "OK, but I get off the hook anyway because," the "because" being accord and satisfaction, laches, statute of limitations, etc. The phrasing of Section 107 (and others) seems to say there isn't infringement, which could be construed as referring to the prima facie case or as referring to ultimate liability after affirmative defenses fail.
In Harper & Row v. Nation Enterprises, the Supreme Court held (at my urging) that fair use is an affirmative defense. It has to be pled by defendant, who has the burden of proving it. Other provisions in Sections 107-122 support this reading: the compulsory licenses in Sections 111, 114, 115, 116, 118, 119, which have the same phrasing as Section 107, are classic licenses that FRCP 8(c) regards as affirmative defenses. And treating fair use as an affirmative defense comports with how it is usually tried: the defendant says, "yes I copied, but I get off the hook because my use is transformative, etc."
But what about other "defenses," like joint authorship? One joint author can't infringe the work because joint authors are tenants in common, each owning an undivided interest in the whole. If you are a joint author, that's it, suit over. But is joint authorship an affirmative defense or simply a denial of a critical element of plaintiff's case (unauthorized copying)? I have read two opinions saying joint authorship is an affirmative defense, but I am not so sure.
The difference between a denial of plaintiff's case in chief and an affirmative defense is subtle. With joint authorship, one might say defendant is claiming, "yes I copied, but I get off the hook because I am permitted to copy as a joint author." Or, one could say defendant is claiming, "I can't be deemed to have engaged in unauthorized copying, because by law I can copy." The rubber hits the road when we ask: "Does plaintiff have to prove defendant is not a joint author, or does defendant have to prove it is a joint author?"
That hearkens back to the fair use issue, where the question was whether plaintiff had to prove the use wasn't fair or whether defendant had to prove it was fair. That question has been settled by Harper & Row, and I think correctly. But joint authorship appears, to me, a bit more uncertain.
Tuesday, October 11, 2005
Quite recently, Judge Gerard Lynch of the SDNY issued an opinion, Sari Louis Feraud International v. Viewfinder Inc. that raised on of the most intriguing conflicts questions, what the French called "ordre public." In ordre public, after going through a choice of analysis, the country where suit is brought (Country A) determines that the applicable law is that of a foreign country (Country B), but refuses to apply it because it violates a public policy of Country A. This is a high hurdle that cannot be surmounted by the mere fact that two countries' laws are difference. Instead, the difference must be "repugnant" to important national principles.
In Sari Louis Feraud, defendant had taken photographs of a fashion show and posted them on its website, Suit was brought in a French court, which awarded a default judgment, which plaintiff sought to enforce in New York. Defendant argued that U.S. law did not extend protection to fashion designs and that its use was fair use. Applying French law would, it was argued, be offensive to U.S. copyright law. Although the case involved enforcement of a default judgment, the analysis raise similar issues if it was a suit brought initially in U.S. court and French law was applied. In rejecting defendant's argument, Judge Lynch held:
"'A judgment is unenforceable as against public policy to the extent that it is repugnant to fundamental notions of what is decent and just in the State where enforcement is sought.' ... The characteristics of French intellectual property law that Viewfinder alleges differ from the rules in the Untied States do not come close to meeting this standard. Copyright and trademark law are not matters of strong moral principle. Intellectual property regimes are economic legislation based on policy decisions that assign rights based on assessments of what legal rules will produce the greatest economic good for society as a whole. Different countries will, at different times, reach different conclusions as to the types of creative endeavor that should receive the benefit of copyright protection and the extent of that benefit, and different conclusions as to the kinds of competitive activity that should be encouraged or discouraged by trademark law. If the United States has not seen fit to permit fashion designs to be copyrighted, that does not mean that a foreign judgment based on a contrary policy decision is somehow 'repugnant to the public policies underlying the Copyright Act and trademark law.'"
This is a pretty sweeping statement, especially the remark that "Copyright and trademark law are not matters of strong moral principle." The French would disagree. Nevertheless, Judge Lynch certainly assigned to copyright a conventional American, instrumental commercial view. Next case.
Monday, October 10, 2005
The terms of Section 204(a) are absolute: "(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent." This is one of those wonderful provisions of law in which Congress, like Horton the Elephant, declared "I meant what I said and I said what I meant; an elephant's faithful, 100 percent."
Sometimes litigants think otherwise, and rely on state law concepts like performance and accepting benefits makes something a contract. Not true, as the purported transferee of exclusive rights from the copyright owner of the frightening VeggieTales found out. The parties had engaged in extensive negotiations and years of "performance." An officer of the transferor company agreed over the phone and in an internal memo that the agreement was "in force." Too bad, the Fifth Circuit recently said in Lyric Studios, Inc. v. Big Idea Productions, Inc, 420 F.3d 388 (5th Cir. 2005). It may not have to be the "Magna Carta," as Judge Kozinski quipped, and Hollywood may do lunches and not written agreements, as he also once wrote, but such a cavalier approach will have dire consequences: you don't own exclusive rights without complying with 204(a). Get it signed, sealed and delivered.
Friday, October 07, 2005
Plaintiff is the New York Mercantile Exchange, defendant the IntercontinentalExchange, Inc. On each day a futures contract remains open and unexpired, the amount of the required margin deposit changes as the price of the underlying commodity fluctuates. The change in value is determined by an end of the day settlement price. The parties disputed how the settlement prices are calculated, consistent with their litigation positions. NYMEX alleged the price involved judgment and discretion; ICE alleged the price was determined by a mathematical formula. This posturing was the result of some loose language in CCC Information Services, Inc. v. Maclean Hunter Market Reports, 44 F.3d 61 (2d Cir. 1994), that could be read as indicating the availability of protection for the prices themselves. CCC, by the great Pierre Leval, is (and I fully believe he would agree), far too complicated: it was an effort to deconstruct the idea-expression dichotomy in the area of factual compilations. The effort was largely beside the point, though, because the claim in CCC was a compilation claim and defendant had copied substantial parts of the compilation. And it was on this basis that Judge Koeltl properly distinguished CCC in NYMEX.
Plaintif NYMEX however clearly asserted a claim for the individual prices, and not in the compilation thereof, which is what makes the case (and decision noteworthy). One might wonder how NYMEX got a registration for prices. The answer is it didn't. The Copyright Office repeatedly refused registration for the prices and NYMEX then (in my opinion) misused the registration process to get into court with a registration. The Office submitted a very helpful brief to the court. I confess to being baffled by why NYMEX every thought it had a claim for such clearly unprotectible material.
Monday, October 03, 2005
There are other types of copyright history, like the history of fair use, the history of formalities, or more narrowly, the history of the manufacturing clause formality. Then there is the history of all U.S. copyright acts, the history of the UK copyright acts, the history of the Stationers' Company, history of printing and print privileges, and the history of all the above put together. Throughout my career I have studied all of these fairly carefully, and I continue to do so. For the last few weeks I have been studying the printing and print privileges in the era 1470 or so to 1570 or so, mostly in Venice, but also in other countries, as well as those issued by Popes. But why? One answer is because there have been a few really good books published quite recently, all by art historians, that contain excellent scholarship. Another answer is that I am preparing the manuscript of my new treatise for publication and am making one last pass through this stuff before sending it off. But neither of these are complete answers: I could have chosen not to read the material or chosen not to put the material in the book (it may in fact be of interest to a limited group), and certainly the art historians who chose to write their books could have chosen to spend their times doing something else too, maybe on more current topics.
So why so much scholarship on really old, obscure stuff? Do we hope to find something that will help us understand the present better, more fully? Will an understanding (to the degree possible by reading other people's research) of Venetian printing privileges help us understand current copyright problems? Do we expect to find the same problems then as now, and so note wisely the unchanging nature of humanity? Or is it antiquarianism, curiosity, a desire to be complete, a love of the subject matter?
In my case I would add great insecurity, a fear of ignorance, a fear that in writing I am making fundamental, stupid mistakes everyone else knows, and so I will be embarrassed if I don't exhaustively try to track down everything. The issue of why pay attention to the past is hardly unique to copyright, but I do find it interesting that art historians have turned their wonderful skills to the subject. I just wonder why I am so fascinated by it.