Thursday, November 16, 2006

Overreaching Copyright Notices

In an era when a notice of copyright is not required and is of legal utility only in connection with innocent infringement claims, why go to the trouble to affix one at all? I regard notices as a relic of the past, but they do serve other purposes, including for some publishers an opportunity to state their view of the scope of their rights. In an article I wrote with Judge Posner, Fair Use and Statutory Reform in the Wake of Eldred, 92 Cal. L. Rev. 1639 (2004) we pointed out some examples and argued for application of the misuse doctrine for overreaching efforts.


In an article in yesterday's AgoraVox, Canadian law professor Michael Geist also wrote about the problem. He gave an example from a Frommer's guide in which readers were admonished that "The use of any part of this publication in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, or stored in a retrieval system, without the prior written consent of the publisher -- or, in the case of photocopying or other reprographic copying, a licence from the Canadian Copyright Licensing Agency -- is an abridgment of the copyright law."

As Professor Geist pointed out, he (and now me) have abridged Frommer's copyright by reproducing the notice itself. Also amusing is the effort by the publisher to bind itself to written permission; why, if the publisher subsequently gives oral permission isn't that OK too?

I decided to hunt around and see how others dealt with the issue. One can do this on one's own by going to amazon.com, punching in an author or book title and then going to the copyright page of the book. Some books don't let you look inside, and ironically, none let you copy the copyright notice itself or even print it out. I looked at two, both by Larry Lessig. The first is "Code and the Laws of Cyberspace." The notice for this book reads: "No part of this book may be reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles and reviews." The second is "Free Culture: The Nature and Future of Creativity." The notice for this book reads: "The scanning, uploading and distribution of this book via the Internet or via any other means without the permission of the publisher is illegal and punishable by law. Please purchase only authorized electronic editions and do not participate in or encourage piracy of copyrighted materials. Your support of the author's rights is appreciated."

16 comments:

Crosbie Fitch said...

This is my notice:

"This is a work of free culture.
It respects all artists equally: those whose work I build upon, myself, and those who build upon my work.
I hope some day you’ll join us."

Daniel Shearer said...

I think you are drastically altering the copyright notice of "Free Culture: The Nature and Future of Creativity."

No scanning, uploading and distribution of this book ... is illiegal and punishable by law.

should read:

The scanning, uploading and distribution of this book ... is illegal and punishable by law.

Berne Baby, Berne said...

I suspect that a lot of the overclaiming comes from misunderstandings about the scope of copyright protection. A large cause of these misunderstandings seems to come from the communication of false information within various media groups. For example, a lot of visual artists seem to be believe that altering a prior work by 5 or 10 percent makes the derivative work transformative. I hear the claim from a lot of photographers that depicting copyrighted material in photographs is per se infringement. Often such claims are supported by anecdotal stories or publications such as a comic book about the difficulties film makers supposedly have in getting permission. In most cases, the claims are preposterous.

Education that is directed towards explaining rights and not to averting risks (however small) could go a long way to address these concerns. For example, there is a section in my book Legal Handbook for Photographers that explains why copyright infringement is not an impediment to most photography. The basic premise is that the amount of copyrighted material in the world is huge and copyright owners cannot enforce rights to incidental material they have caused to be placed in public view. If you photograph someone wearing a Hawaiian shirt reading a newspaper in a subway station, you don’t have to get permission from the fabric designer, the newspaper publisher, or the artists who created the artwork on the advertisements in the background.

The question I have is whether a misuse doctrine could be used offensively against persons who want to abuse the scope of their copyrights, and whether a successful party would be eligible to recover attorney fees. Perhaps sections 412 and 504 could be amended to clearly state that a party who succeeded in a declaratory judgment action could recover statutory damages and attorney fees. This could discourage authors from making claims that go far beyond the scope of legitimate copyright protection.

William Patry said...

Thanks Daniel for noting my typing error, which I have corrected; that's what happens when you can't cut and paste even copyright notices and are, like me, a terrible proofreader.

Anonymous said...

Dear Professor Patry,

It's not breaking news to freelance creators (whose only income is derived from the protection, management and licensing of our copyrights) that Lessig is a fraud, a hypocrite, and now just another tiresome exploiter of creators.

But, thank you for "outing" Larry anyway. It's always good for a chuckle.

Crosbie Fitch said...

Unfortunately, 'Anonymous', Professor Lessig has actually done more for the 'protection, management and licensing' of your copyrights in the last couple of years than the publishing industry has in their entire history.

The latter remains intent on developing its expertise at bringing them thoroughly into disrepute.

Here am I arguing in support of the right for authors to remain unidentified as the authors of their works.

And here you are, a devout IP maximalist, supporting the very industry that would deny your anonymity in order to prosecute your inevitable infringement of their 'IP'.

Not least, it takes a particularly hardy soul to defame a celebrity from a cloak of anonymity.

If your dissidence truly warranted such protection it would stand on its own merit, rather than the reputation of a nonentity.

Anonymous said...

Fitch - Thanks for making the case for why a judicious poster would choose anonymity as a protection from attacks by rabidly blind Lessigian acolytes, such as yourself.

William Patry said...

My point was not to cast aspersion on Larry whom I personally like quite a bit, but merely to note the pervasive use of notices, and regardless of who uses them. I think it is most constructive to address issues, not people. Even looking at the two notices in Larry's books, I think you could see an evolution, which was the point in selecting those two. My hope is that no one will use notices.

Your friendly transactional lawyer said...

Frankly, I'm not entirely convinced that publishers ought not to have the right to contract with their purchasers like anyone else. I mean, why not?

You get contracts of this sort in lots of contexts: purchase any sort of tickets, park your car in a lot anywhere, buy just about anything at a retail store, etc. In addition, businesses face these type of contracts all the time on the back of P.O. and the like.

In a world of contracts, people expand their rights all the time, and people accept those terms as a cost of doing business. How is this really any different?

Is the $20 shelled out for the book not enough consideration for the terms of that Agreement? What if one could show that authors/publishers would charge $40 without such limitation?

Frankly, if we want to have this conversation, then some trail blazing court needs to find that copyright preempts contract law--frankly, I find that unlikely given the precedents that exist.

William Patry said...

I would be surprised if a copyright notice on a book constituted a contract.

Your friendly transactional lawyer said...

Just out of curiosity, why not?

What if the notices were phrased more like those of the terms of use of a website? "By purchasing or using this book you agree to the terms of this [notice] and you may not reproduce this book in whole or in part without the written consent of the author. If you do not agree to these terms, return the book or stop reading."

Frankly, I see nothing magical in that incantation, it may put the reader on more notice they're entering a contract.

Compared to things like website terms of uses, it would really hard to argue that you weren't given proper notice before purchase (or reading it).

In this case, what element of a contract would be missing? You'd have offer, consideration and acceptance.

Your friendly transactional lawyer said...

I will add, briefly, that most people would find this outrageous merely because books have long been understood to have a sort of implied license to use it for the purpose they're printed: to read, to embody a transferable version of the work, to (heaven forbid) share, etc.

That, I'm hypothesizing, has more to do with the medium than any actually related to copyright. For example, simply look at the terms of use of any number of ebooks.

William Patry said...

In the early 19th century book publishers tried to do that with price: there was a notice thatif the book was sold for less than list price, it constituted infringement. The Supreme Court struck the notice down as a restraint on alienation, a holding Congress later codified as the first sale doctrine, now in section 109. But in our notice example, I doubt there would be adequate awareness of the terms before the sale was made. Still, the shrink wrap cases, especially ProDC show that where there is awareness before the sale, a contract that prohibits conduct that might otherwise be permissible will be enforced.

Anonymous said...

I am currently teaching from an educational text the CR for which McGraw Hill states is 2007. When I inquired about the CR date I was told it is common for academic publishers to advance the CR date of their publications. Since the book was published and released in early 2006 this struck me overreaching since it confuses the public. Any comments?

Anonymous said...

You should read Copyfraud, by Jason Mazzone, about inaccurate copyright statements. The SSRN version is here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=787244

William Patry said...

On the 2007 notice. In the days when notice was mandatory, such a notice would have invalidated the copyright because it would have been seen as an effort to extend the term of copyright. Without a notice requirement, there are no consequences from the copyright side. From the commercial angle, it may be an attempt to make the book seem more current than it is.