Friday’s Endnotes – 10/05/12

By , October 05, 2012.

YouTube revamps content ID, defaults to DMCA in case of unresolved disputes — Leading the news this week is Google’s decision to add some flexibility to its Content ID appeals process. According to Google, “When the user files an appeal, a content owner has two options: release the claim or file a formal DMCA notification.” It remains to be seen what the effect of this move will be, but, just for the record, Jonathan Bailey called it.

New paper on ISP liability: how to reconcile US and EU approaches? — The 1709 Blog points to an informative new paper comparing the US’s DMCA and the EU’s E-commerce Directive, both of which set up rules controlling liability for online service providers.

The Internet: Now just another special interest — Behind the shiny new Internet Association is the same old lobbying, as Lydia DePillis of The New Republic reports.

Internet Astroturf 3.0 — Scott Cleland offers a who’s who of groups “united in the common belief that users and groups of any kind should not have to pay, or ask for permission, to use others’ intellectual property online, because permission and payment to use intellectual property limits the sharing, creativity and innovation of others.”

Amanda Palmer’s Accidental Experiment with Real Communism — The New Yorker’s perspective on recent events involving Palmer. “Ideally, you don’t even know you are working at all. You think you are keeping up with friends, or networking, or saving the world. Or jamming with the band. And you are. But you are also laboring for someone else’s benefit without getting paid. And this, it turns out, was exactly Amanda Palmer’s hustle.”

HSI seizes 686 websites selling counterfeit medicine to unsuspecting consumers — The US ICE’s Homeland Security Investigations announced this week the seizure of nearly seven hundred domain names connected with the online illicit sale of fake drugs. The seizures are part of a larger global effort which so far has resulted in 79 arrests, the seizure of 3.7 million doses of counterfeit drugs, and the takedown of approximately 18,000 websites. No word yet on how much this will break the internet.

Protecting Creative and Intellectual Property on the Internet — Independent filmmaker Adam Lipsius recounts his experience with online piracy and the challenges it poses to similar creators. He ends by noting, “it is respect for all craftsmen and conjurers and job creators — and the expectation that society will protect their ability to profit legitimately from their work — that’s at stake when setting the balance on copyright protection in our digital era.”

NYC 2012 Conference: Keynote Speaker; Registration Open! — Bill Rosenblatt announces some of the panels and speakers who have been confirmed for the December 5th conference in NYC, and the event sounds promising. Registration is now open and discounted before November 1.

 

Photos are worth more than the paper they’re printed on

By , October 04, 2012.

Like many couples, Brian Edwards and Thomas Privitere of New York celebrated their engagement by taking engagement photos. They hired photographer Kristina Hill in March 2010 and shared the photos on a blog that documented their upcoming wedding for friends and family.

This past summer, the now-married couple learned that an anti-gay organization known as “Public Advocate of the United States” (“PAUS”) had misappropriated one of the photos, showing the two kissing, to use as the background for, in the words of the Denver Post, “ugly campaign fliers” in Colorado, advocating against a candidate who had supported civil unions in that state. A second mailing, directed at another candidate, was also mailed out by the group.

Last week, Hill, Edwards, and Privitere filed a lawsuit against PAUS, alleging copyright infringement and appropriation of personality and likeness. The photograph, they argued, was not only exploited without permission, it was done to advocate for a position they are diametrically opposed to.

Mike Masnick recently wrote about the case — Why it’s tempting, but troubling, to use copyright as a stand in for moral rights — admitting that the use is likely infringing, but like with any enforcement of creator’s rights, found reason to criticize the lawsuit. Said Masnick:

 I’m worried about the implications here. Copyright in the US is an economic right, not a moral one. Other countries may have “moral rights” or “droit moral” on photographs, but we don’t in the US. And it is clear that the copyright complaint is really entirely about the moral rights issue as it relates to copyright. There is no economic impact at issue here, because there is no economic interest in this image. There does not appear to be any plan or intent to license the image or exploit it economically in any way.

And, so, I worry when we start using moral rights arguments to defend a copyright claim, no matter how strongly I support the moral argument being advanced by the plaintiff.

This is reminiscent of his reaction decrying the Ninth Circuit’s decision in Monge v. Maya Magazines a few weeks ago, where the court held that fair use didn’t protect a tabloid that had published, without permission, private wedding photos that had been stolen from a couple.

Masnick is correct insofar as US Copyright law doesn’t protect “moral rights.” In copyright law, “moral rights” is a term of art, with a specific meaning. Also referred to as “droits moraux”, the term encompasses certain noneconomic rights, such as the right to attribution and a right of integrity. 1The Berne Convention, for example, provides for protection of moral rights in Article 6bis: “Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.” Generally speaking, these rights are not recognized in the US. 2The Visual Artists Rights Act of 1990 (VARA), codified under 17 USC § 106A, grants some moral rights to visual artists under certain circumstances; see also Gilliam v American Broadcasting Companies, 538 F.2d 14 (2nd Cir. 1976).

But in a broader context, Masnick is incorrect. Copyright does recognize noneconomic interests — and the economic interests it recognizes go beyond a simple economic interest in commercial exploitation. Copyright, after all, gives creators the right to control a work, or “the right to say no“, and this right can often serve as a proxy to broader moral rights. In a sense, moral rights are “baked into” US copyright law.

We can turn to the courts to see what I mean.

The Copyright Act gives copyright owners the exclusive right “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” 317 USC § 106(3). This right of distribution, among other things, gives authors the right of first publication.

The right of first publication, long an absolute in the common law (though that has been tempered in recent decades), is anything but an economic right. Rather, as the Supreme Court noted in Harper & Row v Nation Enterprises, “The right of first publication implicates a threshold decision by the author whether and in what form to release his work.” 4471 US 539, 553 (1985). The Court noted earlier that “Publication of an author’s expression before he has authorized its dissemination seriously infringes the author’s right to decide when and whether it will be made public.”

This example shows that author’s right to control her work through copyright is just as vital as her right to remuneration. This right extends beyond just first publication. The Second Circuit wrote in Castle Rock Entertainment v Carol Publishing Group:

Although Castle Rock has evidenced little if any interest in exploiting this market for derivative works … the copyright law must respect that creative and economic choice. “It would … not serve the ends of the Copyright Act — i.e., to advance the arts — if artists were denied their monopoly over derivative versions of their creative works merely because they made the artistic decision not to saturate those markets with variations of their original.” 5150 F.3d 132, 145-46 (2nd Cir. 1998).

Courts have also been clear that this right to control only applies as protection against commercial exploitation. In Sony Corp v Universal City Studios (the “Betamax” case), the Supreme Court stated, “Even copying for noncommercial purposes may impair the copyright holder’s ability to obtain the rewards that Congress intended him to have.” 6464 US 417, 450 (1984). It goes on to point out that these rewards are not limited to monetary payments:

The copyright law does not require a copyright owner to charge a fee for the use of his works, and as this record clearly demonstrates, the owner of a copyright may well have economic or noneconomic reasons for permitting certain kinds of copying to occur without receiving direct compensation from the copier. It is not the role of the courts to tell copyright holders the best way for them to exploit their copyrights.

Other courts have endorsed this characterization of the rewards due authors.

In a 2000 case, the Ninth Circuit noted that the defendant’s distribution or an unauthorized version of plaintiff’s work harmed plaintiff’s “goodwill by diverting potential members and contributions.” It disagreed with defendant’s argument that plaintiff’s failure to exploit the work showed that the work had no economic value that unauthorized dissemination would adversely affect. Said the court, “Even an author who had disavowed any intention to publish his work during his lifetime was entitled to protection of his copyright, first, because the relevant consideration was the ‘potential market’ and, second, because he has the right to change his mind.” 7Worldwide Church of God v Philadelphia Church of God, 227 F.3d 1110, 1119 (9th Cir. 2000).

This is obviously a very brief survey of how copyright law is not limited to purely economic rights. It isn’t “troubling”, as Masnick puts it, nor is it in any way novel, to use copyright to protect an image even though there is no “plan or intent to license the image or exploit it economically in any way.” What’s more troubling, in my opinion, is to strip the law of its humanity, place a dollar sign on everything, and view harm through the lens of a financial ledger. Copyright is more than just a right to remuneration; it “is deeply rooted in our conception of ourselves as individuals with at least a modest grade of singularity, some degree of personality.” 8Mark Rose, Authors and Owners: The Invention of Copyright,  pg. 142 (Harvard University Press 1993). “It is also a source of human liberties.” 9Ralph Oman, Going Back to First Principles: the Exclusive Rights of Authors Reborn, 8 J. HIGH TECH. L. 169, 182 (2008).

References

References
↑1 The Berne Convention, for example, provides for protection of moral rights in Article 6bis: “Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”
↑2 The Visual Artists Rights Act of 1990 (VARA), codified under 17 USC § 106A, grants some moral rights to visual artists under certain circumstances; see also Gilliam v American Broadcasting Companies, 538 F.2d 14 (2nd Cir. 1976).
↑3 17 USC § 106(3).
↑4 471 US 539, 553 (1985).
↑5 150 F.3d 132, 145-46 (2nd Cir. 1998).
↑6 464 US 417, 450 (1984).
↑7 Worldwide Church of God v Philadelphia Church of God, 227 F.3d 1110, 1119 (9th Cir. 2000).
↑8 Mark Rose, Authors and Owners: The Invention of Copyright,  pg. 142 (Harvard University Press 1993).
↑9 Ralph Oman, Going Back to First Principles: the Exclusive Rights of Authors Reborn, 8 J. HIGH TECH. L. 169, 182 (2008).

Nimmer Changes His Tune: “Making Available” is Distribution

By , October 02, 2012.

Today’s guest post comes from Copyhype contributor Devlin Hartline.

One topic of debate in copyright is over whether simply “making available” a file on a peer-to-peer network is itself a violation of the distribution right. 117 U.S.C.S. § 106(3) (Lexis 2012) (“the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: *** (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending”). The courts have been split on the issue. 2See, e.g., Atl. Recording Corp. v. Howell, 554 F.Supp.2d 976 (D. Ariz. 2008); London-Sire Records, Inc. v. Doe 1, 542 F.Supp.2d 153 (D. Mass. 2008); Motown Record Co., LP v. DePietro, No. 04-cv-2246, 2007 WL 576284 (E.D. Pa. Feb. 16, 2007); Warner Bros. Records, Inc. v. Payne, No. 06-ca-051, 2006 WL 2844415 (W.D. Tex. July 17, 2006); Atl. Recording Corp. v. Anderson, No. 06-cv-3578, 2008 WL 2316551 (S.D. Tex. Mar. 12, 2008); Universal City Studios Productions LLLP v. Bigwood, 441 F.Supp.2d 185 (D. Me. 2006); UMG Recordings, Inc. v. Alburger, 2009 U.S. Dist. LEXIS 91585 (E.D. Pa. Sept. 29, 2009). Professor Peter S. Menell explains the controversy:

Interpreting “distribute” narrowly, some courts have held that copyright owners must prove that a sound recording placed in a share folder was actually downloaded to establish violation of the distribution right. Other courts held that merely making a sound recording available violates the distribution right. The ramifications for copyright enforcement in the Internet age are substantial. Under the narrow interpretation, the relative anonymity of Internet transmissions in combination with privacy concerns make enforcement costly and difficult. A broad interpretation exposes millions of file-sharers to potentially crushing statutory damages. 3Peter S. Menell, In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age, 59 J. Copyright Soc’y U.S.A. 1 (2011).

The popular copyright treatise Nimmer on Copyright has played an important role in the debate. The treatise was first published in 1963 by the late Professor Melville Nimmer. Since 1985, his son Professor David Nimmer (“Nimmer”) has taken over the task of editing and updating it. It’s hard to exaggerate how influential Nimmer on Copyright has been in shaping copyright jurisprudence. A quick, informal search on Westlaw turns up 3,301 state and federal cases that have cited it. That is compared to 1,444 cites for Goldstein on Copyright and 236 cites for Patry on Copyright, two other leading copyright treatises.

Several courts have consulted Nimmer on Copyright when analyzing whether “making available” constitutes distribution. As recently as 2011, the treatise took the position that infringement of the distribution right requires actual dissemination of copies of a work to the public. 4Nimmer on Copyright § 8.11[A], at 8-149 (2007) (“Infringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.”). But in the latest edition, Nimmer has changed his tune—the treatise now states that “making available” is distribution simpliciter. After a detailed examination of the legislative history of the current Copyright Act, Nimmer now concludes that “the distribution right was formulated precisely so that it would extend to making copyrighted works available, rather than mandating proof of actual activities of distribution.” 52-8 Nimmer on Copyright § 8.11[D][4][c].

Thomas-Rasset and “Making Available”

The “making available” issue took center stage in the famous Jammie Thomas-Rasset case. In 2006, certain recording companies sued Thomas-Rasset for willful copyright infringement. One of the claims was that she had violated the distribution right by merely “making available” twenty-four copyrighted song files on the KaZaA peer-to-peer network. An investigator working for the plaintiffs found that the song files were available in a KaZaA share folder for others to download, but it could not be determined whether other users had in fact downloaded the files.

The district court instructed the jury that the “act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown.” 6Capitol Records, Inc. v. Thomas, 579 F.Supp.2d 1210, 1213 (D. Minn. 2008) (internal quotations omitted). The jury found Thomas-Rasset liable for willful copyright infringement, awarding the plaintiffs statutory damages of $9,250 per song, for a total of $222,000. The next day, the court entered judgment on the jury’s verdict.

Thomas-Rasset then moved for new trial, or in the alternative, for remittitur. Months later, the district court sua sponte asked the parties to submit briefs on the issue of whether its jury instruction on “making available” was a manifest error of law. Several amici, including the EFF, Public Knowledge, and the MPAA, were permitted to file briefs as well. The plaintiffs and their supporters argued that the jury instruction on “making available” was proper, while Thomas-Rasset and her supporters argued that “making available” is not distribution. After thorough analysis, the district court sided with Thomas-Rasset.

The district court noted that while the Eighth Circuit had not addressed the “making available” issue in the peer-to-peer context, the court of appeals had nonetheless considered and rejected the “making available” argument in a different context in National Car. 7National Car Rental Sys. v. Computer Assocs. Int’l, 991 F.2d 426 (8th Cir. 1993). In that case, the appellate court grappled with the issue of whether a state law claim for breach of contract was preempted by the Copyright Act. The district court below had held that a licensee’s unauthorized use of licensed software to process third-party data was equivalent to distribution of copies of that software.

The Eighth Circuit rejected the notion that use of a software program for the benefit of third parties constituted distribution of the software. The court of appeals turned to Nimmer’s treatise for the proposition that the distribution right “grants the copyright owner the exclusive right publicly to sell, give away, rent or lend any material embodiment of his work.” 8Id. at 430 (quoting 2 Nimmer on Copyright § 8.11[A], at 8-123) (emphasis in original; internal quotations omitted). It concluded that “even with respect to computer software, the distribution right is only the right to distribute copies of the work. As Professor Nimmer has stated, infringement of the distribution right requires an actual dissemination of either copies or phonorecords.” 9Id. at 434 (quoting 2 Nimmer on Copyright § 8.11[A], at 8-124.1) (emphasis in original; internal quotations and brackets omitted).

Finding that the Eighth Circuit’s opinion in National Car was binding precedent, the district court in the Thomas-Rasset case held that liability “for violation of the exclusive distribution right . . . requires actual dissemination.” 10Thomas, 579 F.Supp.2d at 1226. The district court then granted Thomas-Rasset’s motion for a new trial on the ground that the jury instruction on the “making available” issue was legal error that substantially prejudiced her rights. The new trial was of no help to Thomas-Rasset. Even without the “making available” instruction, the jury again found her liable for willful copyright infringement of the twenty-four song files.

The Thomas-Rasset story demonstrates nicely the influence that Nimmer on Copyright has had in the “making available” debate. The Eighth Circuit in National Car relied on the treatise in finding that violation of the distribution right requires actual dissemination of copies of a work to the public. In turn, the district court in the Thomas-Rasset case followed suit in concluding that merely “making available” a work on a peer-to-peer network does not violate the distribution right. But what’s to be made of the fact that Nimmer has now changed his tune on the “making available” issue?

Nimmer’s New Tune

In his recent journal article, Professor Peter S. Menell (“Menell”) surveys the voluminous legislative history leading up the passage of the 1976 Copyright Act, and he shows that Congress did in fact intend to establish that “making available” is distribution. Menell examines the significant errors in interpreting the scope of the distribution right made in the treatises, scholarship, and court decisions. And then in a footnote, he mentions that he was able convince Nimmer to change his tune:

The discussion that follows is based upon the version of Nimmer on Copyright that was available to jurists and practitioners through August 2011. After reading this article, Professor Nimmer asked me to co-author a complete revision of the sections of Nimmer on Copyright relating to the scope of the distribution right and the definition of “publication.” 11Menell, 59 J. Copyright Soc’y U.S.A. at 20 n.90.

The latest edition of Nimmer’s treatise does indeed adopt Menell’s findings on the “making available” issue. (Relatedly, Menell and Nimmer have created two multimedia presentations of their discoveries that I highly recommend: Part I: In Search of the Lost Ark and Part II: The Elephant in the Room.) Nimmer on Copyright now notes that the courts that have looked at the “making available” puzzle have all failed to consider the relevant evidence of Congress’s intent:

The point of commonality among these opinions is that none of them went back to examine the rich trove of legislative materials from the early to mid 1960s and early 1970s explicating Congress’s intent in shifting terminology from the 1909 rights to publish and vend to the 1976 Act’s right to “distribute,” and at the same time expanding the definition “publication” to include offers to distribute. 122-8 Nimmer on Copyright § 8.11[D][1].

Under the 1909 Copyright Act, there was no right to distribute. Instead, copyright owners had the rights to publish and to vend. The right to publish was universally understood to encompass all public offerings of a work, i.e., “making available” copies of a work to the public. Nimmer observes that no court “recognized a requirement to prove actual distribution of copies, and even gratuitous offers of a work to the public fell within the right to publish.” 132-8 Nimmer on Copyright § 8.11[B][4][d] (emphasis in original). That “making available” copies of a work to the public constituted publication was well-settled at the time the revisions for the modern Copyright Act were considered.

Determination of what constituted publication under the 1909 Act was of critical importance because a work was deemed to have lost its common law copyright protection the moment it was published. Moreover, if a work was published without the obligatory copyright notice, that work fell into the public domain and received no statutory copyright protection. Since the penalty for publishing a work without copyright notice was so harsh, judges advanced some questionable distinctions into the jurisprudence. The drafters of the 1976 Act introduced the right to distribute in an attempt to shed these dubious vestiges.

Nimmer explains:

The drafters of the current Act wished to avoid the tremendous accumulation of common law interpretation that had thus arisen over how to define “publication.” For that reason, they chose a new term, “distribution,” as an omnibus term that would encompass all acts then qualifying as “publication,” without the technical exceptions that had accreted through the common law process of various rulings. 142-8 Nimmer on Copyright § 8.11[A].

Thus, the introduction of the right to distribute in the 1976 Act was intended not only to incorporate the preexisting publication right, which included “making available” copies of a work to the public, but it was also intended to broaden the publication right by eliminating the problematic exceptions that had been introduced into the doctrine by the judiciary.

As Nimmer summarizes:

The distribution right accorded by Section 106(3) is to be interpreted broadly, consonant with the intention expressed by its drafters. It extends to the offer to the general public to make a work available for distribution without permission of the copyright owner. No consummated act of actual distribution need be demonstrated in order to implicate the copyright owner’s distribution right. 152-8 Nimmer on Copyright § 8.11[B][4][d].

So under Nimmer’s contemporary analysis, the district court in the Thomas-Rasset case had it wrong when it concluded that nowhere in the legislative history does “Congress state that distribution should be given the same broad meaning as publication.” 16Thomas, 579 F.Supp.2d at 1219. Not only did Congress intend that distributions should encompass all publications, the new distribution right was specifically created to be broader than the antecedent publication right. Similarly, the district court in the Thomas-Rasset case had it backwards when it held that “all distributions to the public are publications, but not all publications are distributions to the public.” 17Id. at 1220.

Given the widespread influence of his treatise, it seems inevitable that others will follow Nimmer in his conclusion that “the act of making available sound recordings for downloading by the public through file-sharing networks suffices to show actionable copyright infringement.” 182-8 Nimmer on Copyright § 8.11[D][4][c]. But only time will tell how many others change their tunes as well.

Follow me on Twitter: @devlinhartline

References

References
↑1 17 U.S.C.S. § 106(3) (Lexis 2012) (“the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: *** (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending”).
↑2 See, e.g., Atl. Recording Corp. v. Howell, 554 F.Supp.2d 976 (D. Ariz. 2008); London-Sire Records, Inc. v. Doe 1, 542 F.Supp.2d 153 (D. Mass. 2008); Motown Record Co., LP v. DePietro, No. 04-cv-2246, 2007 WL 576284 (E.D. Pa. Feb. 16, 2007); Warner Bros. Records, Inc. v. Payne, No. 06-ca-051, 2006 WL 2844415 (W.D. Tex. July 17, 2006); Atl. Recording Corp. v. Anderson, No. 06-cv-3578, 2008 WL 2316551 (S.D. Tex. Mar. 12, 2008); Universal City Studios Productions LLLP v. Bigwood, 441 F.Supp.2d 185 (D. Me. 2006); UMG Recordings, Inc. v. Alburger, 2009 U.S. Dist. LEXIS 91585 (E.D. Pa. Sept. 29, 2009).
↑3 Peter S. Menell, In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age, 59 J. Copyright Soc’y U.S.A. 1 (2011).
↑4 Nimmer on Copyright § 8.11[A], at 8-149 (2007) (“Infringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.”).
↑5 2-8 Nimmer on Copyright § 8.11[D][4][c].
↑6 Capitol Records, Inc. v. Thomas, 579 F.Supp.2d 1210, 1213 (D. Minn. 2008) (internal quotations omitted).
↑7 National Car Rental Sys. v. Computer Assocs. Int’l, 991 F.2d 426 (8th Cir. 1993).
↑8 Id. at 430 (quoting 2 Nimmer on Copyright § 8.11[A], at 8-123) (emphasis in original; internal quotations omitted).
↑9 Id. at 434 (quoting 2 Nimmer on Copyright § 8.11[A], at 8-124.1) (emphasis in original; internal quotations and brackets omitted).
↑10 Thomas, 579 F.Supp.2d at 1226.
↑11 Menell, 59 J. Copyright Soc’y U.S.A. at 20 n.90.
↑12 2-8 Nimmer on Copyright § 8.11[D][1].
↑13 2-8 Nimmer on Copyright § 8.11[B][4][d] (emphasis in original).
↑14 2-8 Nimmer on Copyright § 8.11[A].
↑15 2-8 Nimmer on Copyright § 8.11[B][4][d].
↑16 Thomas, 579 F.Supp.2d at 1219.
↑17 Id. at 1220.
↑18 2-8 Nimmer on Copyright § 8.11[D][4][c].

Remarks on Literary Property (1838)

By , October 01, 2012.

The subject of copyright, or the protection of literary property is one of great importance to the whole world. Every human being, great and small, high and low, gentle and simple, male and female, is interested in this matter. Legislators have treated it as a question of conflicting interest between authors and publishers on the one hand, and the public or the consumers of books on the other; authors, particularly when young, too frequently look upon it as a question of conflicting interest between themselves and the publishers; and consumers through their representative legislators, have endeavoured to secure to themselves the blessing of cheapness, by injurious enactments.

How times have changed!

… One other word to those who fear to do justice, lest monopoly should ensue: it is admitted that a person shall have a perpetual property in the work of his hands, a labour which gives him healthy days, cheerful evenings, and quiet nights; he builds a house for his own benefit; he lives and dies in it, and transmits it to his heirs or assigns forever; and you do not call this monopoly, and you are right: another person devotes himself to literature, and writes books for the benefit of his fellow mortals, (for if they give neither pleasure nor profit, they will not sell;) he labours day and night with his head and pen, a work that gives neither healthy days, nor cheerful evenings, nor quiet nights; his spirit is forced to grapple daily in desperate struggle with the inertia of its earthy tabernacle, in order to gain the mountain height of severe thought; and thus with wear and tear of mind and body, he produces, not a house useful only to himself, but a moral, or religious, or imaginative, or scientific book, that may increase the happiness of thousands yet unborn; and yet this honest labourer is not to have a complete property in his labour’s product, for fear of monopoly!

His case is precisely the same as that of the maker of houses, who cannot get a monopoly rent, because other men make more houses, as soon as he demands too much. So, when an author who has produced a book for which the demand is great, is unwise enough to ask too high a price, another author, (perhaps greater than he,) will write another book on the same subject, and thus demolish his ideal monopoly.

Philip H. Nicklin, Remarks on Literary Property (Phila. 1838).

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