But ultimately, it just seemed like having a potentially infinite universe of every album ever released cheapened the inherent value of any single album.

What Happened to Diverse (and Other Questions Answered)?

Hollywood and Censorship in China — The New Yorker revisits MPAA CEO Chris Dodd’s remarks last week at the National Press Club regarding the explosive growth of US films in China, and the at-times contradictory relationship filmmakers have with Chinese censors.

I’m an Indie Music Publisher. Please Don’t Let Them Put Me Out of Business… — Monica Corton of indie music publisher Next Decade Entertainment responds to the article by the Consumer Electronics Association’s Gary Shapiro a few weeks back where he complained about how tech companies like Google are outgunned by songwriters in Congress.

Google’s Move to Demote Pirate Sites – Is It Really Working? — Nope.

Congress Launches Creative Rights Caucus — A very promising move from Reps. Chu (D-CA) and Coble (R-NC). “The launch of this Caucus comes at a critical time for songwriters and composers. Businesses that want to use copyrighted works without paying rightsholders fair compensation have waged a clever, well-funded campaign to delegitimize copyright protection in the public’s eyes. The Creative Rights Caucus could help bring much needed balance to the copyright debate by educating the public, and Congress, that copyright protection serves to protect the human rights, First Amendment rights, and property rights of individual creators, like songwriters and composers.”

How Your Harlem Shake Videos Make Money for the Original Artist — By now, you may have seen the latest internet fad, the Harlem Shake video, which is either really popular right now or so over, depending on how hip you are. Time reports on how recording artist Baauer and record label Mad Decent have been able to profit off the thousands of user-generated videos on YouTube featuring the song because of Google’s Content ID program.

The Vine Should Suffer, Not the Artist — David Newhoff takes on the popular conceit that good artists should suffer, as well as the role of copyright as incentive. “Opponents of copyright like to say that art existed before copyright, and this is technically true and functionally irrelevant. Copyright is not the reason the artist creates, and it by no means guarantees him a career any more than the right to pursue happiness guarantees happiness. But we could say that happiness existed before 1776. So, why is the right to seek this state of being that has no universal definition codified into American law and culture?  Whatever your individual answer may be, you would be on the road to understanding the relationship between the artist and money as well as the role of copyright as incentive.”

Honoring Our Founders, Remembering Our Principles — Former U.S. Rep. Mary Bono Mack pens this great Presidents’ Day piece on the importance of securing the rights of artists and creators. “Like private property rights, intellectual property preserves an individual’s right to the fruits of their intellectual labor. Our founding fathers considered intellectual property to be a fundamental component of property rights – so much so that they specifically protected intellectual property in Article 1, Section 8 of the Constitution, empowering Congress ‘to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.'”

This past weekend, my parents came to visit me in my new place in Washington, DC. They wanted the “grand tour” of the city, and, as I myself had yet to do the tourist thing, I asked around for recommendations beyond the obvious drive past monuments. At the top of the list: the Library of Congress, which had the added bonus of being open to the public on Presidents’ Day.

Located next to the U.S. Capitol building at the top of the Hill, the Library actually consists of three primary buildings: the original building (renamed the Thomas Jefferson Building in 1980), the John Adams Building, and the James Madison Building. The Library itself was established in 1800 and was initially, well, a library for the use of Congress. Most of the library’s collection was burned by the British in 1814, but was replenished after Thomas Jefferson offered to sell the Library books from his own extensive collection. Beginning in the 1850s, there was a push to create a National Library in the U.S., and the Library of Congress grew (unofficially) into that role under the leadership of Ainsworth Spofford, who directed the Library — and pushed its expansion — from 1865 until 1897. Today, the Library is the largest in the world, with over 150 million items in its collection, including over 20 million books. It’s also worth noting (since this is a copyright blog) that since 1897, the Library of Congress has housed the U.S. Copyright Office.

Library of Congress, Great HallThe Great Hall and exhibition areas of the Thomas Jefferson Building are open to the public Monday through Saturday, with guided tours led by Library of Congress docents several times throughout the day. I’d highly recommend a visit and a tour, as this is one of the most remarkable buildings ever built. If you would build a cathedral for science and useful arts, it would look like this. Every inch of the walls and ceilings are covered with murals and sculptures, created by over 40 individual artists. Amazingly, this artwork was possible because as the building was being constructed, it was under-budget — not something typically associated with government work. And even with the additional cost of commissioning artwork, the final cost of the Thomas Jefferson Building was less than planned. For a complete description of all the works one can see in the building, see the Library’s On These Walls pages.

Library of Congress East Mosaic Corridor Ceiling - LawFor example, in the East Mosaic Corridor, murals on the wall and ceilings depict 13 fields of knowledge — including, as shown in the photo, law — as well as native-born Americans celebrated in those fields (for law, these Americans are Shaw, Taney, Marshall, Story, Gibson, Pinckney, Kent, Hamilton, Webster, and Curtis).

Monday was also one of only two days each year that the Main Reading Room is open to the general public — and photography is permitted.

The Main Reading Room

Library of Congress Main Reading RoomFeatured in the 2008 film National Treasure: Book of Secrets (a major driver of awareness about the room, judging by comments I overheard), the magnitude of the Main Reading Room is difficult to convey in photos — though the Library of Congress does offer a virtual tour if you can’t make it in person. Capped by a dome 125 feet in the air, surrounded by marble Corinthian columns (decorated with American tobacco leaves instead of the traditional acanthus) and 11-foot bronze statues, the Main Reading Room does a good job of inspiring awe.

Library of Congress card catalogAlso open to the public and adjacent to the Main Reading Room is the Main Card Catalog, which houses part of the Library’s old card catalog. No, the Library does not still maintain this. The Library had long ago moved to a computerized catalog — no new cards have been added since 1980, but it has kept the old system around.

To the left is an example of an individual card. A card from the Library of Congress card catalog The Library’s catalog is available online, with a newer version at catalog2.loc.gov that also includes links to resources where you can search other collections and archives beyond books. Here, by the way, is the digital version of the card in the photo.

The Library is a monument to knowledge, the artwork in the Thomas Jefferson Building practically consecrates the book. And since this is a site dedicated to copyright, I’d like to point out the pivotal role copyright law has played in creating the world’s largest library.

Copyright Deposit

Two provisions in the Copyright Act have provided the Library of Congress with many of the materials in its collection.

First, the US Copyright Act allows for voluntary registration of copyrighted works with the Copyright Office. Registration is not a prerequisite for protection, but it does confer a number of benefits, including the ability to file a civil suit for infringement and the ability to seek certain remedies, such as statutory damages. 1See 17 U.S.C. § 408(a), 411, 412. Registration requires the submission of two copies of the work; 217 U.S.C. § 408(b). this serves to provide a record of exactly what work a specific registration covers. The Copyright Office forwards one copy of works acquired here to the Library of Congress to use in its collection.

Separately, under 17 U.S.C. § 407, the owner of a copyright is required to deposit two copies of a work with the Library of Congress within three months of publication. While deposit is not a prerequisite for copyright protection (that is, if you fail to deposit, you do not lose your copyright), the Register of Copyrights may demand compliance from any copyright owner who fails to deposit, and the law provides for fines for non-compliance. And, perhaps a bit surprisingly, the Copyright Office does exercise this authority; in 2010, it made over 4,000 demands for certain titles. 3U.S. Copyright Office, Fiscal 2010 Annual Report, pg. 32.

In 2011, over 700,000 works were added to the Library of Congress under the first provision, over 300,000 under the second. 4Library of Congress Annual Report 2011. It would have cost the Library over $30 million to acquire these works if it had to purchase them.

Laws of the latter kind — which might be called “legal deposit” laws and are distinct from any copyright system — first appeared in Western Europe during the Renaissance. 5Elizabeth K. Dunne, Deposit of Copyrighted Works, Copyright Law Revision Study 20, pg. 1 (US Copyright Office, 1960). The earliest is from France — the Ordonnance de Montpellier, 1537. Similar laws spread throughout Europe, and England enacted a legal deposit system in 1662.

In the US, the 1790 Copyright Act provided for deposit only for copyright registration purposes, which was handled by the District Court nearest an author. A copy of each book registered was to be sent to the Secretary of State. The first attempt at legal deposit was made when the Smithsonian Institute was created in 1846, which provided that copies of each book registered under the copyright law be sent to both the Smithsonian and the Library of Congress. Few authors and publishers complied with this provision, however, and the requirement was repealed in 1859.

When Spofford took charge of the Library of Congress, he set his sights on legal deposit rules that would actually work. After a few unsuccessful attempts, Congress achieved that goal in its 1870 general revision of the copyright laws. The effect was immediate and substantial. In a 1960 study on legal deposit, the U.S. Copyright Office noted, “By 1875, copyright had become the Library’s largest source of acquisition for books and almost the only source for some other materials.” 6Id. at 14.

The great value of the copyright deposit to the collections of the Library of Congress since 1870 has been recognized many times. In the past it has materially assisted the Library in building its collections on all aspects of American history, literature, law, music, and social culture. 7Id. at 30.

References   [ + ]

1. See 17 U.S.C. § 408(a), 411, 412.
2. 17 U.S.C. § 408(b).
3. U.S. Copyright Office, Fiscal 2010 Annual Report, pg. 32.
4. Library of Congress Annual Report 2011.
5. Elizabeth K. Dunne, Deposit of Copyrighted Works, Copyright Law Revision Study 20, pg. 1 (US Copyright Office, 1960).
6. Id. at 14.
7. Id. at 30.

Stop pretending cyberspace exists — Salon makes the case that “cyberspace” as a metaphor should join “cyberspace” as a term in the dustbin of history. “If you’re not convinced by now that the very notion of cyberspace is silly, try substituting ‘fax’ or ‘telephone’ or ‘telegraph’ for ‘cyber’ in words and sentences. The results will be comical. ‘Activists denounced government criminal surveillance policies for colonizing Fax Space.’ ‘Should Telephone Space be commercialized?’ Again, the point is not that telecommunications should not be structured and governed in the public interest, but rather that the debate about the public interest is not well served by the Land of Oz metaphor.”

Ninth Circuit Poised to Address Torrent Site Liability — Remember Isohunt? Oral arguments were held nearly two years ago in an appeal of the decision holding the BitTorrent site liable for massive copyright infringement, but the Ninth Circuit has yet to issue a decision. Jesse Creed has an analysis of the issues in that case over at the Idea/Expression blog.

He Builds It, Audiences Come: A Q&A With A Good Day to Die Hard Production Designer Daniel Dorrance — An interesting interview over at the Credits, taking a look at some of the behind-the-scenes highlights from Dorrance’s career, which includes films like Hook, Saving Private Ryan, and Collateral. Great copyright-related anecdote at the end too, where Dorrance talks about clearing the rights for graffiti.

Of Brands, Digital Pirates — And Shame — The USC Annenberg Lab has released its latest monthly look at ad-supported piracy. The February edition highlights a number of brands that frequently show up on illicit file-sharing sites. Fox Business has the scoop.

The De Minimis Doctrine Plays an Important Role in Copyright Law — A quick at some of the notable cases exploring the de minimis doctrine in copyright law.

National Recording Preservation Plan aims to protect America’s audio history — The Library of Congress is moving to implement a Congressionally mandated plan to curate and preserve the vast trove of recorded music from the past century plus. “The library’s plan makes 32 recommendations toward preserving the nation’s endangered audio heritage. It calls for a publicly accessible directory of sound collections; a national policy for collecting, cataloguing and preserving neglected recordings; the implementation of best practices for preserving digital audio files; and more.”

The Prop Building Guidebook: For Theatre, Film, and TV — Finally, on a personal note, I’m very happy to point readers toward Eric Hart’s (my brother) new book on building props, which has just gone on sale today goes on sale February 26th. Eric also blogs at Prop Agenda.

Last Monday was the deadline for comments on orphan works to be submitted to the U.S. Copyright Office. All comments are currently publicly available at the Office’s orphan works section. Legislation that have limited remedies for the use of orphan works if a copyright owner later emerged failed to pass in 2008, and the issue of orphan works lay dormant in Congress since then. Last year, however, the Copyright Office indicated that addressing orphan works was still one of its priorities, especially in the context of mass digitization projects, which have been growing in size and scope. And so it solicited comments on legal and business developments regarding orphan works since 2008 and inquired about potential orphan work solutions in the context of mass digitization projects.

Orphan works, of course, are works where the copyright owner is either unidentifiable or unlocatable. Such works may still have commercial, cultural, or historical value, but because there is no one to grant permission for these uses, the works lie fallow, especially by risk-averse institutions like libraries and archivists.

As with any discussion of copyright issues, some respondents could not resist using this opportunity to get in a few digs at some of the fundamental aspects of current copyright law. One such aspect is copyright’s automatic nature — protection vests as soon as a work is created and fixed in a tangible medium, as opposed to requiring registration and publication.

In its comment, the Computer & Communications Industry Association claims “Moving away from an ‘opt-in’ default for copyright protection was the most proximate cause of the orphan works problem.” This is echoed by several other respondents, including a joint comment from the Electronic Frontier Foundation and Public Knowledge:

While the renewed interest in orphan works is much appreciated, it also is worth noting that the persistent problem of orphan works is due mostly to three dangerous and sadly persistent aspects of U.S. copyright law: extremely long terms, high statutory damages, and a lack of formalities for copyright protection. With copyright terms commonly lasting more than a century, the number of works that cannot be matched with their rightsholders will necessarily be high. Add to this the fact that no effort beyond the initial fixation of the work itself is required for protection, and the number of copyrighted works in existence in the world becomes astronomical, and increases by millions each day.

Similarly, the Digital Media Association writes:

As the Office has repeatedly noted, including most recently in the present NOI itself, the acceleration of the orphan works issue, an unavoidable result of the progress into the current age of mass utilization, has been further exacerbated by a series of changes in U.S. copyright law over the past half century. These changes have seen the United States Copyright Act modified with relaxed registration requirements, random exceptions and various, difficult-to-interpret extensions to copyright terms for works. These changes, both unilateral and as part of U.S. attempts to come into compliance with various obligations under international treaties, resulted in the removal of certain obligations for copyright owners to proactively assert and manage their rights. The removal of those formalities, which helped enable the public and copyright users to identify the creators and owners of copyrighted works, coupled with the various ever-increasing scope and term of copyrights, has made the issue of orphan works particularly important and something that must be dealt with immediately.

To be fair, the Copyright Office itself has referred to these changes in the Copyright Act of 1976 as exacerbating the orphan works problems on multiple occasions, including in its 2006 Report on Orphan Works.

Nevertheless, when it comes to unpublished works, this is wrong. Provisions in the 1976 Copyright Act addressing unpublished works did far more to alleviate any orphan works problems than any other law or proposal — and solved more problems than those that may have been caused by registration or duration provisions.

Unpublished works comprise a major part of the orphan works population as the comments received by the Copyright Office indicate.

The response from University of North Carolina-Chapel Hill Libraries, for example, indicates that its special collections includes “unpublished manuscripts, letters, and diaries”, such as the Watson Collection, which “consists of 7.5 linear feet of correspondence written between 1873 and 1986.” Emory University Libraries notes, “Much of the special collection materials in libraries … consist of unpublished works or works never created for commercial gain.” And the Society of American Archivists specifically cites unpublished works in its collections that require greater protections to use. And the Copyright Office’s 2006 Report notes strong opposition to excluding unpublished works from any legislation, opposition that came from a “good number of commenters.” 1Report on Orphan Works, pg. 100.

So what did the Copyright Act of 1976 do that fundamentally changed the situation regarding unpublished works? Simply put, it eliminated common law protection of such works and brought them under the umbrella of federal, statutory protection.

History of common law protection for unpublished works

The protection of unpublished works at common law was recognized consistently and continuously for nearly as long as statutory copyright first appeared in England in 1710.

One of the earliest and most influential cases to enunciate this doctrine was Pope v. Curl, in 1741. Noted English poet Alexander Pope sought an injunction against bookseller Edmund Curl to stop him from printing a book of Pope’s letters. Curl argued that Pope maintained no form of property over the letters once he had sent them. The Court disagreed and held that Pope was entitled to an injunction. This despite the Statute of Anne, passed in 1710, applying only to published books, not unpublished letters.

Courts, including U.S. courts, would continue to cite to Pope for the proposition that, even in the presence of statutory copyright law, the common law continued to protect unpublished works. Within a century of the decision, the U.S. would confront issues of common law copyright in Wheaton and Donaldson v Peters. The Court ultimately held that U.S. copyright statutes supplanted any common law copyright upon publication of a work. Before publication, however, was a different story — “That an author, at common law, has a property in his manuscript, and may obtain redress against any one who deprives him of it, or by improperly obtaining a copy endeavours to realise a profit by its publication, cannot be doubted.”

Exactly 100 years after Pope, the Supreme Court confirmed that holding in Folsom v. Marsh, regarded as the origin of the fair use doctrine in the United States. Justice Story explained in his opinion there:

In short, the person, to whom letters are addressed, has but a limited right, or special property, (if I may so call it), in such letters, as a trustee, or bailee, for particular purposes, either of information or of protection, or of support of his own rights and character. The general property, and the general rights incident to property, belong to the writer, whether the letters are literary compositions, or familiar letters, or details of facts, or letters of business. The general property in the manuscripts remains in the writer and his representatives, as well as the general copyright. A fortiori, third persons, standing in no privity with either party, are not entitled to publish them, to subserve their own private purposes of interest, or curiosity, or passion.

These and other cases addressing unpublished works noted that though their protection was similar to protection of published works under statutory copyright, there was a major distinction between the two forms of copyright. Statutory copyright was primarily seen as protecting pecuniary interests, but common law copyright protection of unpublished works was decidedly not pecuniary — by keeping such works from the public, the author either wasn’t interested in or refused to commercially exploit them. As Folsom indicates, protection was justified primarily because jurists considered such works the property of the individual. It would not be until the end of the 19th Century that the reason for such protection would be expressed in more modern terms: as a right to privacy.

Louis Brandeis and Samuel Warren nearly single-handedly gave us the current day conception of the doctrine of the right to privacy — the “right to be let alone” — in the seminal 1890 Harvard Law Review article, The Right to Privacy. 2Dorothy Glancy, The Invention of the Right to Privacy, 21 Arizona Law Review 1 (1979). Brandeis and Warren position this right to privacy as a generalized concept that includes within it the common law copyright for literary and artistic works.

The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others. … The existence of this right does not depend upon the particular method of expression adopted. It is immaterial whether it be by word or by signs, in painting, by sculpture, or in music.

They note that protection does not hinge on the literary merit of the work. “The same protection is accorded to a casual letter or an entry in a diary and to the most valuable poem or essay, to a botch or daub and to a masterpiece. In every such case the individual is entitled to decide whether that which is his shall be given to the public. No other has the right to publish his productions in any form, without his consent.” Also noted is the terminus of this right — publication — and how this serves as one of the distinctions between common law and statutory copyright:

The right is lost only when the author himself communicates his production to the public, — in other words, publishes it. It is entirely independent of the copyright laws, and their extension into the domain of art. The aim of those statutes is to secure to the author, composer, or artist the entire profits arising from publication; but the common-law protection enables him to control absolutely the act of publication, and in the exercise of his own discretion, to decide whether there shall be any publication at all. The statutory right is of no value, unless there is a publication; the common-law right is lost as soon as there is a publication.

Brandeis and Warren later argue that, unlike statutory copyright, common law copyright protects specific expression and any facts native to that expression, as well as what today we would call “metadata.”

A man records in a letter to his son, or in his diary, that he did not dine with his wife on a certain day. No one into whose hands those papers fall could publish them to the world, even if possession of the documents had been obtained rightfully; and the prohibition would not be confined to the publication of a copy of the letter itself, or of the diary entry; the restraint extends also to a publication of the contents. What is the thing which is protected? Surely, not the intellectual act of recording the fact that the husband did not dine with his wife, but that fact itself. It is not the intellectual product, but the domestic occurrence. A man writes a dozen letters to different people. No person would be permitted to publish a list of the letters written. If the letters or the contents of the diary were protected as literary compositions, the scope of the protection afforded should be the same secured to a published writing under the copyright law. But the copyright law would not prevent an enumeration of the letters, or the publication of some of the facts contained therein. The copyright of a series of paintings or etchings would prevent a reproduction of the paintings as pictures ; but it would not prevent a publication of list or even a description of them.

Well-settled at this point, common law copyright protection of unpublished works survived the first major revision of copyright law in the 20th century. The 1909 Copyright Act explicitly recognized this common law copyright, stating that the Act “shall [not] be construed to annul or limit the right of the author or proprietor of an unpublished work, at common law or in equity, to prevent the copying, publication, or use of such unpublished work without his consent, and to obtain damages therefor.” 317 USC § 2, added by 35 US Stat 1076 [1909]).

Protection of unpublished works remained strong in the decades that followed. Perhaps the strongest endorsement of this principle comes from a DC Circuit Court in 1936, which stated, “That there is and always has been a property right in letters and other writings which a court of equity will protect is too well settled to discuss. It is one of those rights which antedate the Constitution. It is inherent in a free government.” 4Hearst v Black, 87 F.2d 68, 70.

C.I.A.: Copyright In Action

For a good history of common law copyright protection of unpublished works arising from a remarkably intriguing set of facts, check out the 1977 case Birnbaum v. U.S. 5436 F.Supp 967 (EDNY).

This case involves HTLINGUAL, a secret (and unlawful) CIA project that involved the opening, reading, and copying of mail that came in and out of the United States for two decades.  The government did not dispute the illegality of its acts during the lawsuit — the only issue confronting the court was whether the government could be sued for its actions and, if so, whether its actions were compensable under state tort law (in this case, New York). The court held that the government could be sued, then turned to consider which cause of action it could be sued for.

Among these, the court considered common law copyright. The court began its discussion by saying,

Common law copyright reserves to authors the right to control the time and circumstances of the first publication of their works. The right has been important to artists, professional writers, scholars and others whose intellectual productions have some commercial value. But the doctrine also has been utilized to shield writers of ordinary, nonliterary letters against the misappropriation and nonconsensual publication of their correspondence.

The court launches into an examination of the legal history of common law copyright, discussing Pope v. Curl, than seguing to Folsom v. Marsh. Aside from a few early decisions that held otherwise, the law seemed settled that common law copyright protected personal letters. The court here continued,

Story expounded further on this theme in his treatise on equity jurisprudence, where he eloquently urged that the true value preserved in many instances by the application of common law copyright was not dollars and cents but privacy. His thesis greatly influenced American courts and was explicitly adopted in New York in Woolsey v. JuddThe court placed its decision squarely on the need of society for a “free interchange,” writing:

Our own views and feelings, we do not hesitate to declare, correspond entirely with those which Mr. Justice Story, in the most elaborate and useful of his works, has very forcibly expressed. We agree with him, that the unauthorized publication of [personal] letters, “unless in cases where necessary to the vindication of the rights or conduct of the party against unjust claims or imputations, is perhaps, one of the most odious breaches of private confidence, of social duty, and of honorable feelings which can well be imagined. It strikes at the root of that free interchange of advice, opinions and sentiments, which seems essential to the well-being of society . . ..” (2 Story’s Equity Jur. § 946.) 6That is, publishing without permission infringes freedom of speech.

To drive the point home even more sharply that common law copyright is a device by which New York courts protect the privacy interest in the property of a letter, the opinion concluded:

[I]t is with no ordinary satisfaction that, in closing this discussion, we find ourselves in a condition to affirm that the rules of law relative to the publication of private letters, are in perfect harmony with those of social duty and sound morality, and, in the protection which they afford to individuals, consult and promote the highest interests of society.

The few subsequent New York cases to consider the issue have reaffirmed the theme that common law copyright protects an author’s privacy as well as his pocketbook.

The court ultimately held that the government had violated plaintiffs’ common law copyright in this case by copying their personal letters and “publishing” them (under the meaning of that term for common law copyright purposes).

Absolute and Perpetual Property

There is no doubt that the protection of unpublished works by common law copyright until the Copyright Act of 1976 was enacted was well-established. But what was the nature and scope of this protection?

Absolute and perpetual.

Authorities over the past two centuries on multiple occasions have stated that common law copyright protection endured until the work was published — which conceivably means forever if a work is never published. 7Drone on Copyright (1879):

As the law is now expounded, there are important differences between the statutory and the common-law right. The former exists only in works which have been published within the meaning of the statute, and the latter only in works which have not been so published. In the former case ownership is limited to a term of years; in the latter it is perpetual. The rights do not coexist in the same composition; when the statutory right begins the common-law right ends. Both may be defeated by publication. Thus, when a work is published in print, the owner’s common-law rights are lost, and, unless the publication be in accordance with the requirements of the statute, the statutory right is not secured.

Copyright Office, Copyright Law Revision Study 29, Protection of Unpublished Works, pg. 32 (1961), “The historical theory of copyright law in the U.S. has been to protect private manuscripts against public disclosure, under the common law, for as long as the author or his successors choose to withhold the work from the public.”

At least one court has held that these rights continue indefinitely in the U.S. even if they fall into the public domain in the country of their origin. 8Capitol Records v Naxos, 4 N.Y.3d 540, 562 (NY 2005). And, it should be added, since common law copyright arises from the states, this unlimited duration is not subject to the Federal Constitution’s “limited times” requirement, a point upheld by the Supreme Court. 9Goldstein v California, 412 US 546, 560 (1973).

In addition, the doctrine of fair use does not apply to unpublished works under common law copyright. 10Harper & Row, Publishers v Nation Enterprises, 471 US 539, 550-51 (1985). In fact, no limitations in copyright law affected common law copyright. 11Protection of Unpublished Works, pg. 4. And, if Brandeis and Warren were correct, protection extended to certain ideas and facts in unpublished works that are not protected under statutory copyright.

Copyright Act of 1976

In the blink of an eye, centuries of common law copyright doctrine vanished when the Copyright Act of 1976 went into effect. The Act included the following provision:

On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State. 1217 U.S.C. § 301(a).

This had the effect of preempting state and common law copyright. This and other provisions in the 1976 Act brought unpublished works under the protection of federal copyright law. It eliminated publication as the dividing line between common law and statutory protection, extending protection to all works at the moment of creation. 13Harper & Row at 552. This also meant that, for the first time in history, fair use (and every other statutory limitation on copyright) extended to unpublished works.

Copyright Office Study on Unpublished Works

This wasn’t accidental. The revision process that led to the 1976 Copyright Act took decades. As part of it, the Copyright Office undertook a number of studies, including one on unpublished works that was released in 1961. In it, the Office examined the current law and considered the pros and cons of bringing unpublished works under federal protection. At times, the study looks at some of the same issues that motivate the present day orphan works efforts. For example, at one point the study notes:

[I]t may be argued that the privacy of authors should be respected by protecting their undisseminated writings against unauthorized disclosure for an unlimited time unless and until they or their heirs or assigns choose to make the disclosure. Thus, the author and his heirs may wish to withhold from the public his less successful works which, in their opinion, might detract from his reputation; or they may wish to keep from the public writings which contain the author’s personal observations regarding contemporary persons or events. On the other hand, it can be argued that after a considerable period of time after the death of the author and his contemporaries, the sensitivity of their remote heirs is no longer entitled to the same consideration, while the accessible “private” writings of the author may be of great interest to scholars, historians, and the public in general. The author or his heirs, or others in possession of his “private” writings, may of course destroy any writings which they believe should never be disclosed; but if these writings remain in existence, there may be a public interest in eventually allowing anyone in possession of an old manuscript to make it available for research or publication without the risk of infringement claims by remote and unknown heirs. 14Protection of Unpublished Works, pp. 32-33.

Included in the final study are a number of comments from individuals that had been solicited by the Copyright Office. Of note is the fact that many who favored protection of unpublished works so that they would eventually be available to scholars and the general public believed that a term of life of the author plus fifty years (which the 1976 Copyright Act would end up adopting) was perfectly adequate to advance this public interest. 15Among them was Judge Learned Hand, who wrote, “I would impose a time limit [on works not publicly disseminated] say for 100 years after the work is created or for 50 years after the author’s death.”

It’s also worth noting that not everyone agreed with protecting unpublished works under federal copyright law. Noted authors’ advocate Irwin Karp wrote in response to the study:

There is no reason, either in history or considerations of policy, to bemoan the fact that an unpublished novel, a personal letter, or an unperformed play, may be protected by common law for periods exceeding the term of statutory copyright. …

It seems to me that the common law property rights in undisclosed works should be preserved. This right is in accordance with a fundamental concept of the democratic form of government; the right of privacy (even though it is not specifically granted in the Constitution). To me, it is also an inevitable concomitant of the right of free speech—that right should include not only the privilege of speaking but of withholding speech.

If an author does not choose to publish something he has conceived and written, that is his own business and nobody else’s. The theoretical loss of valuable works to the community is a risk that must be taken to preserve freedom of thought, speech and privacy—at best it is only a theoretical risk. For every author who may exercise the right of withholding his work, there are a hundred who are only too anxious to disclose the fruits of their minds to the public at the earliest possible opportunity. There is little danger that much will be lost to posterity by permitting those who do not choose to disclose to exercise that privilege. 16Protection of Unpublished Works, pg 49, (letter dated April 4, 1958).

Always double-check copyright reform claims

When it comes to unpublished works, the Copyright Act of 1976 did not have the effect that groups mentioned at the beginning of this article say it had: all unpublished works were protected before the Act under common law copyright and protected after the Act under federal law. But more importantly, because of the differences between the two forms of copyright, the Act arguably opened the door for a lot more unpublished works to be made publicly accessible by libraries, museums, and archivists.

Under the 1976 Act, unpublished works would eventually fall into the public domain, unlike under common law. And before the copyright term ends, other parties are now able to make fair use of them. This is especially important for libraries, a number of whom assert in their orphan works comments (erroneously, in my opinion) that the fair use doctrine shields the bulk of their uses of orphan works under mass digitization projects. 17See, for example, comments by the Library Copyright Alliance and MIT Libraries. Additionally, Brandeis and Warren suggest that so-called “non-expressive” uses of unpublished works under common law — e.g., indexing, computational linguistics, natural language processing — were previously not allowed. Under federal law, they are. Again, this is important since many mass digitization projects (as well as search engines like Google) have derived great benefit from these “non-expressive” uses of copyrighted works. 18See Matthew Sag, Orphan Works as Grist for Data Mill (Forthcoming, Sept. 1, 2012), for further discussion on nonexpressive uses, data processing in mass digitization projects, and orphan works.

References   [ + ]

1. Report on Orphan Works, pg. 100.
2. Dorothy Glancy, The Invention of the Right to Privacy, 21 Arizona Law Review 1 (1979).
3. 17 USC § 2, added by 35 US Stat 1076 [1909]).
4. Hearst v Black, 87 F.2d 68, 70.
5. 436 F.Supp 967 (EDNY).
6. That is, publishing without permission infringes freedom of speech.
7. Drone on Copyright (1879):

As the law is now expounded, there are important differences between the statutory and the common-law right. The former exists only in works which have been published within the meaning of the statute, and the latter only in works which have not been so published. In the former case ownership is limited to a term of years; in the latter it is perpetual. The rights do not coexist in the same composition; when the statutory right begins the common-law right ends. Both may be defeated by publication. Thus, when a work is published in print, the owner’s common-law rights are lost, and, unless the publication be in accordance with the requirements of the statute, the statutory right is not secured.

Copyright Office, Copyright Law Revision Study 29, Protection of Unpublished Works, pg. 32 (1961), “The historical theory of copyright law in the U.S. has been to protect private manuscripts against public disclosure, under the common law, for as long as the author or his successors choose to withhold the work from the public.”

8. Capitol Records v Naxos, 4 N.Y.3d 540, 562 (NY 2005).
9. Goldstein v California, 412 US 546, 560 (1973).
10. Harper & Row, Publishers v Nation Enterprises, 471 US 539, 550-51 (1985).
11. Protection of Unpublished Works, pg. 4.
12. 17 U.S.C. § 301(a).
13. Harper & Row at 552.
14. Protection of Unpublished Works, pp. 32-33.
15. Among them was Judge Learned Hand, who wrote, “I would impose a time limit [on works not publicly disseminated] say for 100 years after the work is created or for 50 years after the author’s death.”
16. Protection of Unpublished Works, pg 49, (letter dated April 4, 1958).
17. See, for example, comments by the Library Copyright Alliance and MIT Libraries.
18. See Matthew Sag, Orphan Works as Grist for Data Mill (Forthcoming, Sept. 1, 2012), for further discussion on nonexpressive uses, data processing in mass digitization projects, and orphan works.

This week at Idea/Expression: Amici urge reversal in GSU digital coursepack case — A look at arguments raised by appellants and their supporters in Cambridge Univ Press v Becker.

Seven copyright principles for the digital era — The World Economic Forum’s Global Agenda Council on the Intellectual Property System has developed a series of principles that they hope will “provide a framework for addressing copyright in light of the many new technologies for creating, disseminating, and consuming content.” Check them out and see what you think.

Ad Networks Face Criticism for Pirate Placements — The Future of Music Coalition picks up on the growing story about brand-sponsored piracy. “It’s crucial that the legitimate digital marketplace continues to grow. It’s clear that in order for this to happen, there needs to be greater cooperation between all players in the online ecosystem.”

Where are the creators? Consider creators in copyright reform? — As part of a series/debate at Cato Unbound about copyright reform, Mark Schultz asks a pivotal question. “I am genuinely puzzled when copyright discussions treat creative works if they are a pre-existing resource that the government arbitrarily allocates. They are not. They aren’t an imaginary regulatory entitlement, such as pollution credits. They aren’t leases or mineral rights on public land handed out to political cronies. Creative works are, instead, the productive intellectual labor of private parties. Real people make this stuff.”

We Need Strong Copyright Laws Now More Than Ever — David Israelite of the National Music Publishers Association responds to Gary Shapiro’s bizarre rant that appeared in Forbes magazine last week.

Sirius/XM VS. A2IM Case Dismissed — The case involving allegations that A2IM wrote a blog telling its members to read Sirius’ contracts before signing them was settled and dismissed.

Compare & Contrast — David Newhoff digs into some of the curious companies advertising on and supporting sites like The Pirate Bay… and contrasts their self-proclaimed “internet freedom” mission with activists who are actually addressing problems in the real world. Very interesting read.

Reality should always be our starting point for discussing policy, and copyright policy should be no different. This seemingly goes without saying, but when it comes to copyright in particular, a funny thing happens to reality and evidence.

William Patry’s latest book, How to Fix Copyright, is premised largely on the claim that copyright policy lacks any empirical support. More recently, you can see such arguments coming from non-profits like the EFF — Congress Shouldn’t Debate Copyright in a Reality-Free Zone — or bloggers like Cory Doctorow — Copyright policy in the UK: an evidence-free zone.

The irony is that the evidence is there, the reality is there, but sadly, it is all too often ignored or even misrepresented — whether we’re talking about empirical evidence, historical claims, or the realities of operating creative enterprises. It’s troubling to see disagreements about the proper scope of copyright law transform into denialism. (I last addressed this topic in How Much More Evidence?)

Carnegie-Mellon economics professor Michael Smith recently spoke at the Digital Book World conference in New York on the topic of piracy’s negative effects. That was the topic of a meta-study he wrote, along with fellow professor Rahul Telang, that summarized the growing body of research concerning piracy: Assessing the Academic Literature Regarding the Impact of Media Piracy on Sales.

Smith and Telang found that of the papers based on empirical data (as opposed to theoretical models), 25 found economic harm from piracy, while only 4 found little or no harm. And for those who are skeptical of non-academic papers: Smith found that 12 peer-reviewed papers published in academic journals found a negative impact from piracy while only 2 did not (and there are legitimate questions concerning the methodology of those 2 outlier papers, some of which are explored in Stan Liebowitz’s 2005 article Economists’ Topsy-Turvy View of Piracy).

Evidence like this, of course, does not tell us where to go from here. But it is amazing how many who join with skeptics of copyright either don’t know about the scholarly record on piracy or don’t care. Problems with economic arguments stretch beyond just this issue of the harm from piracy. Edmund Kitch explores four broader issues in this area in his 2000 article Elementary and Persistent Errors in the Economic Analysis of Intellectual Property — including the assumption that intellectual property rights are economic monopolies.

This feature of copyright debates, a “willful blindness” to reality if you will, is not limited to just economics — the same could be said of history.

Recent criticisms of copyright, such as the retracted RSC memo or articles published by the Cato Institute, continue the cavalier revision of the historical record that is not uncommon among copyright skeptics. Appeals are made to a copyright past that bears little resemblance to reality. Appeals are made to motivations of the original drafters of U.S. copyright law that just aren’t supported by the historical record, and occasionally are made out of whole cloth.

The Center for Individual Freedom recently published a paper rebutting some of these claims: The Constitutional and Historical Foundations of Copyright Protection. I’ve also written about some of the myths from the birth of copyright law before and pointed to other articles that delve into these and other historical inaccuracies that tend to crop up in copyright discussions.

And an entire book could be written about the myopic view from skeptics of the business realities that creators and industries that rely on copyright face.

So when debates over specific issues in copyright law pop up, or even discussions of more generalized reform, we should be sure that assumptions and claims are grounded in reality. On that, we can all agree. The difficult part is picking which reality — the one based on evidence and facts, or one based on something else.

What If the Great Wikipedia ‘Revolution’ Was Actually a Reversion? — An interesting piece from the Atlantic. Wikipedia may seem different from the Encyclopedia Britannica, but it does not seem so different from EB‘s precursors. “In fact, this seems to be true of so many of the Internet’s innovations’: Blogs look like 18th- and 19th-century publishers more than they do The New York Times or The Washington Post; small crafters selling their wares on Etsy look more like earlier markets than the 20th century’s big chains. We have a tendency to reach for the most recent historical examples as our benchmarks, but when you take a longer view, you see that we haven’t so much as broken with the past as repeated it.”

Over 50 Major Brands Supporting Music Piracy, It’s Big Business! — The Trichordist has a master list of over 50 major brands whose advertisements have ended up on illicit filesharing sites, along with a list of Twitter handles for the companies for artists and creators to call this to the brands’ attention.

Think File Sharing is Sticking it to the Man? Really? — David Newhoff uses the above Trichordist piece as a starting point for a larger conversation. Says Newhoff, “I would challenge the defender of ‘file sharing’ to read the list on The Trichordist site and convince himself that by downloading unlicensed media he’s ‘sticking it to The Man.’ The truth is the ardent file sharer is a corporate puppet that has no idea which companies are pulling its strings.”

Blink 182’S Mark Hoppus: Artists Should Be Paid For Their Creativity — CreativeAmerica points to a video of remarks by Blink 182 bassist Mark Hoppus made recently during Midem. In part, Hoppus said, “I believe that artists should be paid for their creativity. There’s no other industry where people can come in and take what you create for free and give it away for free and that’s acceptable.”

The US Supreme Court Is NOT Going To Revoke Your Right To Sell Stuff On eBay — A rational take on Kirtsaeng from Business Insider: “A group called Owners Rights Initiative – a coalition including eBay, Etsy, and Overstock, among others – claims the case could have ‘far-reaching impacts on all Americans.’ That group even released a video showing ordinary Americans on the street speaking out for their right to be able to resell whatever they buy. The thing is, a victory for John Wiley probably won’t impact the average person who sells a couple of foreign-made items on eBay.”

CAS Will Not Harm Public Wi-Fi — Jill Lesser, Executive Director of the Copyright Alert System, responds to concerns that the educational graduated response program will negatively impact public wi-fi networks. In part, Lesser notes that “The vast majority of businesses, including those like Starbucks that provide legitimate open Wi-Fi connections, will have an Internet connection that is tailored to a business operation and these business networks are not part of the CAS and will never be sent a Copyright Alert.”

Study: Megaupload Shutdown Caused a ‘Significant Increase In Digital Sales…’ — Digital Music News reports on a talk by Carnegie Mellon professor Michael Smith last week at the Digital Book World conference in New York, where Smith presented evidence that digital sales received a bump after Megaupload was taken offline last year. Smith released a paper last year, Assessing the Academic Literature Regarding the Impact of Media Piracy on Sales, that concluded “while some papers in the literature find no evidence of harm, the vast majority of the literature (particularly the literature published in top peer reviewed journals) finds evidence that piracy harms media sales.”

Difficult music — The Futility Closet presents several compositions that fall into the “advanced” category. The sheet music for Faerie’s Aire and Death Waltz is a sheer delight., including directions such as “insert peanuts” and “if there is a 3rd clarinet some violins may go.”