Open Source Copyright Hub unveiled with ’90+ projects’ in the pipeline — The UK’s long-anticipated Copyright Hub officially launched this week. Andrew Orlowski explains, “The Hub aims to build rights-aware layers on top of the internet, so that people can track how what they make public is used, much as DNS added ease of use to naming protocols and VPNs added privacy standards to the basic bare-bones internet.” Last March, the US’s Internet Policy Task Force held a public meeting that considered whether the US should have something similar.

TVEyes Cannot Stand in the Shoes of its Users — “[I]t is one thing for a media critic to reproduce a segment of a news broadcast for the specific purpose of analyzing or commenting on that broadcast. But it is another thing entirely for a company to continuously and endlessly copy the content of thousands of television networks and offer that content to subscribers who may then make a fair use of the content.”

Annotated state laws of Georgia on my Mind — In a bit of sleight of hand, Carl Malamud proclaims that a recent lawsuit by the State of Georgia against his organization for reproducing in whole the Official Code of Georgia Annotated amounts to an attempt to copyright the law. However, the actual lawsuit alleges copyright infringement of the Code’s annotations, which includes notes and summaries of judicial decisions that have interpreted provisions of the Code. In 1709 Blog’s view, “the State of Georgia’s case has some merit.”

The Anti-Commons Revisited — A common claim among IP academics is that IP rights like copyright suffer from anti-commons effects, where numerous and overlapping rights prevent transactions and innovation. Jonathan Barnett examines the claim and finds evidence for it scarce, while finding evidence that markets and private actors correct for anti-commons effects is abundant.

House Judiciary Committee Announces Next Step in Copyright Review — “The Committee has issued joint invitations to all prior witnesses of the Committee’s copyright review hearings to meet with Committee staff and provide additional input on copyright policy issues… The Committee is also openly inviting any interested party to come and discuss their interests in copyright law during this process as well.

Visual Artists: Recent Orphan Works Rumors Are Not True — A look at recent erroneous claims of new copyright legislation that hijacked an unrelated Copyright Office public comment proceeding.

Oracle and Google both propose Android-Java trial dates in the spring of 2016 — FOSS Patents has the latest on the litigation between Oracle and Google involving the Java API. The case has returned to the District Court following last month’s denial of a cert petition by the Supreme Court involving the 2014 Federal Circuit decision that held the Java API is copyrightable.

Coalition Asks WIPO To Follow Proposed Guidelines To Better Defend IP Rights — 85 organizations in 51 different countries published a letter this week affirming the importance of IP rights, including copyright. According to the letter, “Advanced societies have long understood that by protecting the proprietary rights of artists, authors, entrepreneurs, innovators, and inventors, they were promoting the greater public welfare. The continued protection of these fundamental rights is essential to global innovation, creativity and competitiveness.”

Sound is the forgotten flavor sense — “Manipulating sound can transform our experience of food and drink, making stale potato chips taste fresh, adding the sensation of cream to black coffee, or boosting the savory, peaty notes in whiskey.”

Now Hiring: Screenwriters — “When a writer types THE END, it is the beginning of a process that involves hundreds of jobs and services before the script even reaches the actual production stage. Staff at the Producer’s office, Studio execs and Story execs and their staff who are employed to read, develop, finance and produce your script get to keep their jobs because of writers. Agents, Managers, Lawyers who negotiate the writer deals, all have jobs in part because of writers. Once the script goes into the production stage, the amount of jobs required to produce a film grows exponentially; crews of 100-400 and more become necessary; local vendors and merchants in the location where my script is being filmed benefit and are able to boost employment. Hotels, car rental agencies, airlines, local restaurants, stores, shops, all benefit enormously by my typing THE END.”

Do weaker copyrights really increase economic growth? — No, says Tom Sydnor. Following an analysis of a recent Lisbon Council report that found it contained serious methodological blunders to reach its conclusion that weaker copyright protection increases economic growth, Sydnor looks at several of the “serious errors of law” the report also made.

‘Don’t Be Mad': Scott Borchetta Talks Apple Negotiations, How Taylor Swift Told Him About Her Letter — “What really went down leading up to Taylor Swift’s show-stopping Father’s Day letter to Apple regarding streaming payments during Apple Music’s free trial?”

Modernizing the Copyright Office — “The key question is: Are at least some of the complaints about the copyright system more matters of the limitations of the Copyright Office than they are limitations of copyright law? The answer seems to be yes, and with more autonomy and better infrastructure, a 21st Century Copyright Office should be able to solve some of the logistical problems consumers face when trying to use creative works.”

Guild to Congress: Close Internet Piracy Loopholes, Implement “Notice and Stay-Down” — “Court decisions have construed the Digital Millennium Copyright Act’s Notice and Takedown provisions to mean that a copyright owner is required to send a notice for each separate instance (i.e., copy) of infringement, specifying the URL. But as soon as a pirated copy is taken down, it is usually put right back up. Needless to say, copyright owners cannot keep up with this senseless game, and individual authors do not begin to have the resources to send a new notice every time a pirated copy is posted or reposted. We are asking for a ‘Notice and Stay-Down’ regime: once a webhost knows a work is being infringed, it should not continue to receive “safe harbor” immunity from claims of infringement unless it takes reasonable measures to remove all infringing copies of the same work.”

After a brief hiatus due to vacation and holidays, we’re back!

Copyright And The Public Interest: Not Necessarily Competing Forces —  “It does not serve the aspirations of developing societies to return to a system in which the voices of the people serve the whims of the private elite, or worse, to allow governments to be the sole determining body in the matter of cultural works. By permitting creative genius to be fueled by market forces, we unleash the cultural power and potential of the diversity of individuals, freeing creative impulses from the tyranny of centralized controls and making creative works accessible to the public at large. While copyright may be inadequate on its own in creating fair market conditions, it remains by far the most powerful tool for fostering creativity and democratizing culture itself.”

IPA: ‘Freedom of expression linked to copyright’ — A new report from the International Publishers Association looks at the connection between weak freedom of expression protections in developing countries and weak copyright protections.

The Lisbon Council’s 2015 Intellectual Property and Economic Growth Index: A Showcase of Methodological Blunder (PDF) — According to a Phoenix Center analysis, a recent report purporting to show that so-called flexible copyright limitations and exceptions have a positive economic effect “is junk science and should be ignored.” The analysis details some of the report’s methodological flaws.

Five Hard Lessons We Learned Making GHOST SHARK 2: URBAN JAWS — Some perhaps helpful advice for new filmmakers, as well as an interesting look into DIY filmmaking. And the filmmakers conclude by saying, “Enjoy our strange little movie, and please, for the love of God, don’t pirate it.”

40 states line up with Mississippi in Google Adwords pharma scrap — “‘In my ten years as Attorney General, I have dealt with a lot of large corporate wrongdoers. I must say that yours is the first I have encountered to have no corporate conscience for the safety of its customers, the viability of its fellow corporations or the negative economic impact on the nation which has allowed your company to flourish,’ Hood wrote in a letter to Google chairman Eric Schmidt.”

Copyright Office modernization efforts deserve broad support — From Tom Sydnor at American Enterprise Institute: “the outdated and ineffective IT procurement processes at the Library of Congress have forced the US Copyright Office to try to run a 21st century copyright system with 19th and 20th century technologies. That anachronism disserves the legitimate interests of everyone affected by copyrights – creators, creative industries, content distributors, and users of expressive works. The Copyright Office needs independent IT funding and procurement authority, and internal IT personnel, in order to use the latest technologies to make copyright registration, recordation, and search far more effective, efficient and accessible than they are today.”

Supreme Court Recognizes that Patents are Property — In a case involving raisins, obviously. The Court’s discussion applies just as much to copyright.

Authorship and Authority in the Moral Foundations of Moral Rights — Brian Cwik sketches out an alternative justification for moral rights, one that shows that moral rights and copyright have more in common than often suggested.

How Television Won the Internet — Reports of “old media’s” demise have been premature. “The fundamental recipe for media success, in other words, is the same as it used to be: a premium product that people pay attention to and pay money for. Credit cards, not eyeballs.”

 

‘Mad Men’ era Copyright Office needs to be brought into the 21st century — “Let’s start with where the U.S. Copyright Office is housed: in the Library of Congress. Why? Well, in 1890, placing it there was a convenience to help the Library build its collection of books that were deposited for registration. Of course, this is meaningless in the electronic era and allows the Library to re-direct funding to other projects. Although knowledge of copyright law is not a requirement to be Librarian of Congress, that person is in charge of issuing copyright regulations. Congressional hearings have produced a consensus that the Copyright Office needs budget and operational autonomy to function properly.”

Making John Lasseter Cry: Pete Doctor and Jonas Rivera on “Inside Out” — Great interview with the producer and director of Pixar’s latest, “Inside Out”, out today. The original story took five years to develop.

Justin Bieber Must Face Copyright Suit, Appeals Court Rules — The Fourth Circuit reversed the decision of a lower court to dismiss a copyright complaint alleging Usher and Bieber infringed an existing song. The Circuit held, after listening to the two songs itself, that “a reasonable jury could find the songs intrinsically similar,” so the litigation should survive the pleadings stage.

Jenner & Block Accuses Google of Abusive Litigation Tactics — “‘The most fundamental purpose of these subpoenas is to send a message to anyone who dares to seek government redress for Google’s facilitation of unlawful conduct: If you and your attorneys exercise their First Amendment right to seek redress from a government official, Google will come after you,’ Jenner & Block partner David Handzo wrote. ‘The court should not allow Google’s abuse of the litigation process.'”

Canadian court reflects common sense in rejecting Google appeal — Google lost an attempt in Canada to ignore a court order to restrain infringement. Here’s David Newhoff’s take. “The case of Equustek v Google demonstrates that a very narrow and carefully weighed judicial approach to de-indexing clearly criminal sites can coexist with free speech and of course not break the Internet. More importantly, the Canadian court places what seems like a very fair and minimal degree of burden on the site owner, rejecting the all-too-popular claim that sites are to be treated exclusively and universally as neutral, passive entities in these matters.”

Top Nine Myths About Trade Promotion Authority And The Trans-Pacific Partnership — A bit of trade-related posts this morning since the House is set to vote on Trade Promotion Authority today (and trade agreements include important provisions setting minimum standards for copyright protection). “Despite the tireless efforts of trade policy experts to explain why TPA and the U.S. trade agreements it’s intended to facilitate are, while imperfect, not a secret corporatist plot to usurp the U.S. Constitution and install global government, myths and half-truths continue to infect traditional and social media outlets.”

Three letters that spell a better economic future — BSA CEO Victoria Espinel pens this op-ed in favor of TPA, noting, “In the 1980s, we took stock of how our economy was changing and where our future strengths lay. We found that we were innovators, so intellectual property protection was essential. We also found that we were strong in a broad range of services. But at that time there were not trade rules in place to ensure we could reap the full benefits from those advantages. So the U.S. took the lead in negotiating strong trade rules to ensure we could take full and fair advantages of these strengths.”

Copyright’s Republic: Copyright for the Last and the Next 225 Years — In case you missed it, Mark Schultz and Devlin Hartline introduced a series of essays that will show that “Copyright laid the foundation for, and continues to support, the largest, most enduring, and most influential commercial culture in human history. That commercial culture is uniquely democratic, progressive, and accessible to both creators and audiences.” So far, part one is up, Promoting an Independent and Professional Class of Creators and Creative Businesses.

“YouTube for YouTube” — Chris Castle asks the question, how innovative is Google’s “YouTube for Artists” initiative? He gets insightful responses from David Lowery and Blake Morgan.

CloudFlare Enjoined From Aiding Infringers: Internet Unbroken — Last week, a federal court rejected CloudFlare’s (and EFF’s) argument that the service did not have to comply with a court-ordered injunction because it wasn’t aiding and abetting infringing activity. Here is excellent analysis of that decision.

The Pharaohs Of Silicon Valley: My Journey Through Google Headquarters — “With elegant, deliberate precision, the Google Car starts its own motor and makes a slow, controlled trip around the quarter-mile track. It comes to a perfect, gradual stop at the finish line. The door to the car opens and the scientist emerges. He now has the head of a falcon. He emits frightened birdlike shrieks from his new beak as he grasps in horror at his monstrous new head.”

The Ninth Circuit’s en banc decision in Garcia v. Google was hugely popular when it came out several weeks ago, though talk about it has quickly died down. 1No. 12-57302, May 18, 2015. Despite that, part of the court’s discussion is troubling and worth note.

To recount the facts quickly, actress Cindy Lee Garcia performed a cameo in what she thought was an “action-adventure thriller set in ancient Arabia.” The film ended up being an offensive anti-Islam film Innocence of Muslims. Garcia appeared for five seconds with a dubbed-over voice asking, “Is your Mohammed a child molester?” A 14 minute version of the film was uploaded to YouTube, causing widespread outrage in the Middle East. A fatwa was issued by an Egyptian cleric against all participants in the film, and Garcia received “multiple death threats” because of her appearance. 2See Cindy Lee Garcia’s declaration for a detailed account of many of these threats.

Garcia took legal action through a number of avenues. On November 30, 2012, a federal district court denied a preliminary injunction based on a copyright claim. A Ninth Circuit panel reversed this decision in 2014 and granted the injunction, causing widespread outrage on the internet. 3766 F.3d 929 (9th Cir. 2014). On May 18th, however, an en banc court dissolved the panel’s injunction and affirmed the district court’s decision.

The En Banc Decision

When deciding whether to grant a preliminary injunction, a court considers four factors: (1) the likelihood a plaintiff will succeed on the merits of her claim, (2) the likelihood a plaintiff will suffer irreparable harm absent an injunction, (3) the balance of hardships between the two parties, and (4) the public interest.

The Ninth Circuit held that the district court did not abuse its discretion in denying the injunction for two reasons. First, it concluded that Garcia was unlikely to succeed on the merits, saying “neither the Copyright Act nor the Copyright Office’s interpretation supports Garcia’s claim.” And second, it held that “Garcia failed to muster a clear showing of irreparable harm.” Because of these two conclusions, the court found it unnecessary to consider the final two factors.

I think the Ninth Circuit reached the correct result on the merits in holding that Garcia did not have an independent copyrightable interest in her five second performance—and there are doctrines the court didn’t look at, such as the de minimis doctrine, that may have separately provided grounds for such a result. However, its discussion regarding irreparable harm does not rest on as solid legal grounds. It’s easy to gloss over the discussion of irreparable harm if one is thinking about it in terms of Garcia’s weak claim. But when one realizes it applies across the board to all copyright owners, then the concern becomes apparent.

The Ninth Circuit starts its discussion of irreparable harm by asserting that “there is a mismatch between [Garcia’s] substantive copyright claim and the dangers she hopes to remedy through an injunction.” That is, says the court, because Garcia is seeking an injunction under copyright law, her “harm must stem from copyright—namely, harm to her legal interests as an author.” The Ninth Circuit cites to the Second Circuit’s remark in Salinger v. Colting that “The relevant harm is the harm that … occurs to the parties’ legal interests” 4607 F.3d 68, 81 & n.9 (2d Cir. 2010). in support.

It then turns immediately to the Constitution, asserting that the “purpose of copyright underscores the disjunction Garcia’s case presents.” The Ninth Circuit finds copyright’s purpose is explicitly commercial and not to “protect secrecy.”

Having defined copyright’s purpose in such a way, the court then describes the harms Garcia is seeking to prevent as “damage to her reputation, unfair[,] forced promotion of a hateful Film, and death.” However, it says, these “harms are untethered from—and incompatible with—copyright and copyright’s function as the engine of expression.”

For example, the court finds “privacy is not a function of the copyright law” because the goal of copyright is “to encourage public access to the creative work of the author.” Similarly, emotional distress damages are unavailable under the Copyright Act “because such damages are unrelated to the value and marketability of their works.”

Finally, the court finds no refuge for Garcia in the “right to be forgotten” or “moral rights”, since it says neither are recognized in the United States. It ultimately concludes that “the gravamen of Garcia’s harm is untethered from her commercial interests as a performer, and instead focuses on the personal pain caused by her association with the film.”

The Legal Interests of an Author

The court gets so much incorrect in so little time. Perhaps it’s the case that the weakness of Garcia’s substantive claim casts a shade over the court’s discussion of irreparable harm. The problem is that this discussion is just as applicable to a meritorious copyright claim.

So what went wrong?

First, the court improperly narrows the interest at stake from the legal interest to the “legal interest as an author” (and, later, narrows this further to the commercial interest as a performer). There is no statutory basis for this interpretation. Copyright protection subsists in a work. 517 USC 102(a). It accords a set of exclusive rights in that work. 617 USC 106. Infringement occurs simply through violation of any of these exclusive rights. 717 USC 501. Nowhere does the Copyright Act qualify infringement or an author’s exclusive rights as the Ninth Circuit has.

Ironically, the very case the court cites in support provides a counterargument. After the Second Circuit says in Salinger that the relevant harm is the one that “occurs to the parties’ legal interests”, as the Ninth Circuit quotes, it goes on to say that “The plaintiff’s interest is, principally, a property interest in the copyrighted material.” An invasion of a property interest causes a legal harm. This is contrary to the Ninth Circuit’s suggestion here that only certain types of invasions cause legal harms which may give rise to irreparable harm, particularly only harms to commercial interests.

The Supreme Court has provided support for this interpretation a number of times over the decades. In eBay v. MercExchangewhich, though it involved an injunction for patent infringement, is just as applicable to copyright injunctions— 8The Ninth Circuit is among the Federal Circuit Courts of Appeal to explicitly hold so, see Perfect 10 Inc. v. Google Inc., 653 F. 3d 976, 980 (9th Cir. 2011). the Court said that “a copyright holder possesses ‘the right to exclude others from using his property.’” 9547 US 388, 392 (2006). It cautioned against adopting “expansive principles suggesting that injunctive relief could not issue in a broad swath of cases.” Of particular relevance here, it chastised the lower court’s conclusion that “’[a plaintiff’s] lack of commercial activity in practicing the patents’ would be sufficient to establish that the patent holder would not suffer irreparable harm if an injunction did not issue.”

As the Court said in Sony, “It is not the role of the courts to tell copyright holders the best way for them to exploit their copyrights.” 10Sony Corp v Universal City Studios, 464 US 417, 450 (1984). But it was most direct in Fox Film Corp. v. Doyal when it said, “The owner of the copyright, if he pleases, may refrain from vending or licensing and content himself with simply exercising the right to exclude others from using his property.” 11286 US 123, 127 (1932).

Elsewhere, the Ninth Circuit has said, “Even an author who had disavowed any intention to publish his work during his lifetime was entitled to protection of his copyright”. 12Worldwide Church of God v. Philadelphia Church of God, 227 F. 3d 1110, 1119 (9th Cir. 2000).

The legal interest in a copyright, based on the statutory text and Supreme Court precedent, is an interest in exercising exclusively the rights enumerated in the Copyright Act. It is not, as the Ninth Circuit suggests, limited to a narrow subset of invasions, such as those that only affect a copyright owner’s commercial interests. That’s not to say that there is a presumption of irreparable harm once a likelihood of infringement has been established; the Supreme Court cautioned against such “categorical rules” in eBay. 13547 US at 392. See also Salinger v. Colting, 607 F. 3d 68 at 82 (2nd Cir. 2010) (“After eBay, however, courts must not simply presume irreparable harm.”). But as the Second Circuit pointed out when applying eBay, “This is not to say that most copyright plaintiffs who have shown a likelihood of success on the merits would not be irreparably harmed absent preliminary injunctive relief. As an empirical matter, that may well be the case, and the historical tendency to issue preliminary injunctions readily in copyright cases may reflect just that.” 14607 F. 3d at 82.

Garcia, however, did not argue for a presumption of irreparable harm. She asserted a number of irreparable harms that were likely to result in the absence of an injunction. 15Ex parte application for a temporary restraining order and an order to show cause re preliminary injunction, and order of impoundment, No. CV 12-8315 (Oct. 17, 2012) (No. 12). These harms included the risk of death, that most irreparable of injuries.

Non-economic Interests

The Ninth Circuit marshals a number of points to support its conclusion that Garcia failed to show irreparable harm. First, the court’s discussion of the Constitutional purpose of copyright is both premature and misconceived.

Its emphasis on copyright’s role in encouraging “public access to the creative work of the author” and its ability to override a copyright owner’s legal interest leads to a logical contradiction. In a sense, the court is suggesting that copyright’s purpose is served by ignoring copyright. One must instead read the Copyright Clause conjunctively: Congress “promote[s] the progress of science and useful arts by securing… to authors… the exclusive right to their… writings.” Copyright’s purpose, in other words, is served when authors’ exclusive rights are secured.

The court then asserts that relief from the injuries Garcia seeks to avoid—”damage to her reputation, unfair[,] forced promotion of a hateful Film, and death”—”is not easily achieved under copyright law” because those harms are incompatible with “copyright’s function as the engine of free expression.”

This is an incomplete statement about the relationship between copyright and the First Amendment. The First Amendment protects not only the freedom to speak, but the freedom not to speak. 16Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston , 515 U.S. 557 (1995). at 573; see also, e.g., Pac. Gas & Elec. Co. v. Pub. Util. Comm’n of Cal., 475 U.S. 1 (1986) (plurality opinion). Courts—including the Supreme Court—have recognized this principle applies equally in copyright cases. The Court in Harper & Row said that “freedom of thought and expression ‘includes both the right to speak freely and the right to refrain from speaking at all.’” 17471 US 539, 559 (1985). Copyright, it said, serves this “First Amendment value.” Indeed, the Second Circuit observed in Salinger, which the Ninth Circuit quotes in its discussion, that “[t]he loss of First Amendment freedoms,” and hence infringement of the right not to speak, “for even minimal periods of time, unquestionably constitutes irreparable injury.” 18Salinger at 81. It would certainly be the case, then, that being threatened with death for words that one did not speak but that have been attributed to her would constitute irreparable injury.

The court is correct when it says that “authors cannot seek emotional distress damages under the Copyright Act.” But the case it cites is speaking about actual damages, not injunctive relief, so that statement is irrelevant here.

The court’s dismissal of a copyright owner’s privacy interests is similarly misguided. Copyright and privacy have long shared common ground. In 1849, a British court said, “That there is property in the ideas which pass in a man’s mind is consistent with all the authorities in English law. Incidental to that right is the right of deciding when and how they shall first be made known to the public. Privacy is a part, and an essential part, of this species of property.” 19Prince Albert v. Strange, 1 McN. & G. (1849). Warren and Brandeis’ seminal article, The Right to Privacy, also observe this kinship. There, the legal giants say, “[T]he legal doctrines relating to infractions of what is ordinarily termed the common-law right to intellectual and artistic property are, it is believed, but instances and applications of a general right to privacy.” 204 Harv. L. Rev. 193 (1890).

Right Results, Wrong Approach

To reiterate, establishing irreparable harm here does not necessarily mean Garcia should get an injunction. As noted above, the weak merits of the copyright claim weighs against an injunction. And though the Ninth Circuit did not look at the third factor, the balance of hardships or equities, that likely weighs against injunctive relief as well, given Google’s attenuated participation in the infringement.

So it is all the more unfortunate that the court expounded erroneously on irreparable harm. At its heart, copyright provides the author with the exclusive right to decide how, when, and where their expression is disseminated to the public (subject, of course, to exceptions and limitations like fair use). Any given author will have a range of equally valid interests motivating those decisions, both economic and non-economic. Courts should exercise caution in second guessing those motivations as the Ninth Circuit did here in its discussion on irreparable harm.

References   [ + ]

1. No. 12-57302, May 18, 2015.
2. See Cindy Lee Garcia’s declaration for a detailed account of many of these threats.
3. 766 F.3d 929 (9th Cir. 2014).
4. 607 F.3d 68, 81 & n.9 (2d Cir. 2010).
5. 17 USC 102(a).
6. 17 USC 106.
7. 17 USC 501.
8. The Ninth Circuit is among the Federal Circuit Courts of Appeal to explicitly hold so, see Perfect 10 Inc. v. Google Inc., 653 F. 3d 976, 980 (9th Cir. 2011).
9. 547 US 388, 392 (2006).
10. Sony Corp v Universal City Studios, 464 US 417, 450 (1984).
11. 286 US 123, 127 (1932).
12. Worldwide Church of God v. Philadelphia Church of God, 227 F. 3d 1110, 1119 (9th Cir. 2000).
13. 547 US at 392. See also Salinger v. Colting, 607 F. 3d 68 at 82 (2nd Cir. 2010) (“After eBay, however, courts must not simply presume irreparable harm.”).
14. 607 F. 3d at 82.
15. Ex parte application for a temporary restraining order and an order to show cause re preliminary injunction, and order of impoundment, No. CV 12-8315 (Oct. 17, 2012) (No. 12).
16. Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston , 515 U.S. 557 (1995). at 573; see also, e.g., Pac. Gas & Elec. Co. v. Pub. Util. Comm’n of Cal., 475 U.S. 1 (1986) (plurality opinion).
17. 471 US 539, 559 (1985).
18. Salinger at 81.
19. Prince Albert v. Strange, 1 McN. & G. (1849).
20. 4 Harv. L. Rev. 193 (1890).

#Copyright225 — Last Sunday marked 225 years since George Washington signed the first US Copyright Act into law. Take a look at some of the benefits it has provided since then.

The Copyright Office for the Digital Economy Act — A discussion draft of legislation that would take the first step toward modernization of the US Copyright Office was introduced by Reps. Judy Chu and Tom Marino on Thursday. The primary function of the bill would be to shift the Office to an independent agency outside the Library of Congress, where it currently resides.

Copyright Office Modernization — And in case you want all the background on Copyright Office Modernization, what it is, what issues are involved, and why it’s necessary, be sure to check out this handy list of resources.

Orphan Works and Mass Digitization — The Copyright Office Thursday released its long anticipated report covering orphan works—an issue it has studied for over a decade—and mass digitization, a related issue that has come to the forefront more recently. The Office recommends legislation to limit remedies for users of orphan works following a good faith diligent search for the copyright owner. The Office also proposes a system of extended collective licensing to help facilitate nonprofit mass digitization projects for education and research purposes. It recommends starting with a limited “pilot program” for a small number of classes of works as well as soliciting public comments on various issues concerning the scope and administration of any extended collective licensing program.

The Effectiveness of Site Blocking as an Anti-Piracy Strategy: Evidence from the UK — “[O]ur results showed that when 19 sites were blocked simultaneously, former users of these sites increased their usage of paid legal streaming sites by 12% on average, relative to the control group. The blocks caused the lightest users of the blocked sites (and thus the users who were least affected by the blocks, other than the control group) to increase their use of paid streaming sites by 3.5% while they caused the heaviest users of the blocked sites to increase paid streaming visits by 23.6%, strengthening the causal inference in our result.”

Five years later, why this “stupid Gay” fights piracy — Ellen Seidler: “How can we change the status quo? We speak out. The good news is that we are. Artists across the spectrum have begun to focus frustration into action. We’ve begun to speak out and formed coalitions, demanding with one voice that our representatives in Washington take action to better safeguard creative work (and livelihoods) in the digital age.”

Down the Rabbit Hole: Why Inside Out is Unlike any other Pixar Film — “Their story creation process at Pixar is notoriously labor intensive and exacting. The men and women behind these films craft their narratives for years (and years), until they are satisfied they are telling the best version of that story possible…”

Last fall, a federal judge in the Southern District Court of New York ruled that a news monitoring service’s copying of a news channel’s “broadcast content for indexing and clipping services to its subscribers constitutes fair use.” 1Fox News Network, LLC v. TVEyes, Inc., 43 F. Supp. 3d 379 (SDNY 2014); see also my post, Fox News v TVEyes: Fair Use Transformed. The service, TVEyes, copied wholesale every program broadcast by 1,400 channels (including plaintiff Fox News Network). It then created a searchable index of video clips and provided its clients—who pay $500 a month for the service—streaming and downloading access to that content, all without a license from the channels.

Fox News sued for copyright infringement. Currently, the court is considering whether other features offered by TVEyes also constitute fair use: saving, archiving, downloading, emailing, and sharing clips by subscribers, along with searching television clips by date and time rather then keyword or term. Fox is supported by an amicus brief from Bright House, CNN, CBS, NBC Universal, and News 12, while the EFF and the Technology Law & Policy Clinic at NYU School of Law have filed in support of TVEyes.

Though this litigation is recent, the issues involved here concerning fair use and news monitoring are not new. In fact, Congress looked at them in great detail over twenty years ago.

News monitoring and Section 107

Sen. Orrin Hatch introduced a bill October 1990 that would have amended the Copyright Act to provide that “fair use of a copyrighted work for purposes of monitoring news reporting programming is not an infringement of copyright.” 2S.3229, 101st Cong. (2nd Sess. 1990). The bill did not make it out of Committee.

During a 1991 hearing before the House IP Subcommittee, Robert Waggoner, Chairman of the Video Monitoring Services of America, testified on behalf of the International Association of Broadcast Monitors. 3Copyright Amendments Act of 1991 Hearings before the H. Subcomm. on Intellectual Property and Judicial Administration of the Comm. on the Judiciary on H.R. 2372, 101st Cong. (1991). Waggoner officially appeared in support of Title I of H.R. 2372, the bill being considered by the Subcommittee, but spoke primarily about fair use for broadcast monitoring services, an issue not on the agenda.

Waggoner positioned broadcast news monitoring services as advancing “a core First Amendment interest.”

They disseminate news to an interested public that would otherwise have no effective means of access to such information. They are the custodians of the public’s right to know what is being aired about them, and where.

However, Waggoner raised concerns over the Eleventh Circuit’s 1984 decision in Pacific Southern Co. v. Duncan, which rejected a broadcast news monitor’s fair use defense, primarily because the service was commercial in nature. 4744 F.2d 1490 (11th Cir. 1984), cert. denied, 471 U.S. 1004 (1985). He also cited with concern a number of lower courts that have followed Duncan. 5E.g., Cable News Network, Inc. v. Video Monitoring Services of America, Inc., Civ. No. 1:88-CV-2660-JOF (N.D. Ga. Jan. 9, 1990); NBC Subsidiary (KCNC-TV) v. Video Monitoring Services of America, Inc., Civ. No. 88-Z-234 (D. Colo. July 27, 1989); Georgia Television Co. v. TV News Clips of Atlanta, Inc., 9 U.S.P.Q. 2d (BNA) 2049 (N.D. Ga. 1989).

S. 1805

Senator Hatch introduced his news monitoring bill again a few months following this hearing. 6S. 1805, 102nd Cong. (1st Sess. 1991). Like the previous bill, it would amend §107 of Title 17 by inserting “or monitoring news reporting programming” after “news reporting”. This time, the bill was referred to the Senate Subcommittee on Patents, Copyrights and Trademarks, which held a hearing on the legislation June 16, 1992. 7News monitoring: Hearing before the S. Subcomm. on Patents, Copyrights, and Trademarks of the Committee on the Judiciary on S. 1805, a bill to amend Title 17, United States Code, to clarify news reporting monitoring as a fair use exception to the exclusive rights of a copyright owner, 102nd Cong. (1992), hereinafter “News monitoring hearing”.

The Senate Subcommittee heard from six witnesses, including Register of Copyrights Ralph Oman and noted copyright scholars David Nimmer (appearing on behalf of Turner Broadcasting System and the National Association of Broadcasters) and L. Ray Patterson (who had represented the news clipping service in Duncan). Arizona Senator and Subcommittee Chairman Dennis DeConcini began with a brief statement extolling the benefits of news monitoring services but skeptical that the bill was necessary:

We live in an age where the electronic media provide nonstop access to a constant flow of information and take us around the world as quickly as it takes us down the street. In a constant sea of electronic information, it’s difficult, if not impossible, to stay on top of all that the news has to offer. Therefore, I find these new monitoring services to be extremely valuable. However, I do not believe that the value of these services is the question before us today. To me the question is how these services go about getting access to the information that they monitor, package, and eventually sell.

The fair-use doctrine has evolved over years through the courts as a balancing test that I believe has served us well and one which I’m reluctant to amend in the absence of compelling evidence. I will listen with great interest to the justification for the legislation, and I’ll look for an answer as to why this conflict cannot be resolved in the marketplace.

Register Oman led off the witness slate by testifying that “the Copyright Office does not support enactment of S. 1805.” In the Office’s view, fair use and licensing arrangements would cover most current broadcast monitoring activities, the bill would not provide any additional certainty to providers, and in some cases it goes too far in departing from fair use precedent, particularly by providing commercial access beyond “hard news.” Said Oman, “Monitors would be free to reproduce segments of documentaries, of magazine format-type shows, and public affairs broadcasting.”

Oman also raised concerns about market harm, saying “Broadcast monitoring threatens copyright owners’ potential market for video clips, to some extent, whether or not they now exploit the market, and I understand that some of them already do provide a limited service in this regard.”

Robert Cohen, president of Video Monitoring Services of America, testified next on behalf of the International Association of Broadcast Monitors. He began with a dire warning. “Without this legislation, the existence of the broadcast news monitoring industry in the United States is and will remain in jeopardy. Without our industry, the ability of the public to have access to news reporting about themselves and about issues important to them will be threatened.”

Cohen reiterated that the motivation for the bill were the previously mentioned court decisions like Duncan that have held broadcast monitoring was not fair use. He emphasized the important service that monitors provide to their clients, and he supported the bill in order to “clarify to the judiciary that news monitoring is just the kind of activity that the fair-use doctrine was designed to protect.” Cohen concluded his remarks by stressing “that if we go out of business or our services are chilled, there is no alternative for obtaining information from news programming on an immediate, nationwide basis.” 8International Association of Broadcast Monitors President Ed Moser separately testified during this hearing, but his statement largely echoed Cohen’s points. L. Ray Patterson concurred with Cohen. In his opinion, Duncan was wrongly decided, and this bill was necessary “to clarify [the law] for the courts.” 9Patterson’s argument that it was wrongly decided was that the Eleventh Circuit’s permanent injunction “gave perpetual copyright protection, unlimited in nature, to protect uncopyrightable as well as abandoned material, and this is wholly contra to what the 1976 Copyright Act provides.” This appears to erroneously conflate right with remedy.

David Nimmer offered a succinct description of the broadcasters’ position in his written statement:

We recognize this subcommittee’s interest in exploring ways in which copyright laws can promote public access to information and facilitate rapidly developing communications technologies. Broadcast monitoring services… are but one means of fulfilling this valuable public service. At the same time, however, public access to news broadcasting need not be secured at the expense of copyright ownership.

Neither broadcast monitoring services, nor the public interest in public access to video monitored news, should trump the copyright claims of those who finance, produce, create and edit broadcast news. Copyright protection, not copyright violation, serves the public interest. Copyright protection is intended to encourage creation of intellectual property by allowing the creator to retain the maximum ability to profit from his or her work. The control of a work’s ancillary uses is an important part of deriving full value. For this reason, we are troubled by the rhetoric of those video monitors who refuse to enter into license with the originators of the programs that they copy and sell, but still try to justify their behavior under the cloak of the “public interest”. For example, one witness who testified before Congress on behalf of the broadcast monitoring industry equates the guarantees of free speech with an unimpeded—i.e., unlicensed—right of public access to information.

This tips the balance too far. The simple truth is that this is a business issue, not a constitutional issue. We are not disagreeing about whether the public should have access to news clips but about whether copyright holders deserve compensation for and protection of their product.

Nimmer went on to rebut some of the concerns raised by proponents of the bill.

First, he noted that Congress has already addressed the question of public access to news broadcasts in multiple areas of federal law. For example, the 1976 Act permits archival reproduction and distribution by libraries and archives of “an audiovisual work dealing with news”; outside the Copyright Act, the Library of Congress is permitted to reproduce and distribute a “regularly scheduled newscast or on-the-spot coverage of news media.”

He then considered current business practices, saying, “Far from demonstrating a breakdown in the marketplace for access to news programs, current licensing practices can accommodate the growth of the video monitoring industry through market-based incentives.” Among the benefits of voluntary licensing is that it “forces direct face-to-face negotiations between news producers and video monitors, sensitizing each group to the needs of the others.”

Nimmer concluded,

Information access and retrieval technology is undergoing daily, rapid change. Rather than craft legislation that [may] chill development of new technologies (e.g., interactive, on-line video retrieval), Congress should ensure that existing non-profit, non-commercial uses remain anchored within the fair use exception and that commercial businesses built around the use of materials originated by others continue to be governed by traditional copyright law norms.

Senator Hatch wrapped up the hearing with a statement supporting his bill. Like Cohen and Patterson, he believed most news monitoring should fall under fair use, but court decisions like Duncan have necessitated a legislative course correction.

There was no further action on S.1805 following the hearing. Sen. Hatch reintroduced the bill the following Congressional session but it did not go anywhere, 10S. 23, 103rd Congress, 1st Sess. (1993). and there have been no similar bills introduced since. Congress had ample opportunity to consider adding news reporting monitoring to the list of fair use purposes in 107 but declined to do so.

Then and now

Contrary to Cohen’s predictions, the lack of legislation did not jeopardize the broadcast news monitoring industry. Nevertheless, little has changed in the discussion of fair use and news monitoring from the early 90s to the current litigation involving Fox News and TVEyes. For example, like Senator DeConcini, the amicus brief from the EFF and the NYU Tech Law & Policy Clinic says, “Every day, a virtual flood of news content streams across countless front pages and home pages, broadcast-television and social-media feeds, and more. The amount of content being produced in the media environment has exploded in recent years.”

But some things have changed. Most importantly, the current litigation involving TVEyes presents several crucial facts that are fundamentally different from the context in which proponents of the news monitoring bills in the 1990s supported legislation.

First, Waggoner noted in his 1991 testimony that, at the time, broadcast monitors only recorded news programs and only provided small clips. 11News monitoring hearing at 265-266. “Hard news”, being primarily informational rather than creative, arguably admits to fair use more readily. TVEyes records everything on 1,400 channels: news programs, news magazines, documentaries, and likely everything else. And users can watch at least some of these in their entirety. 12See Expert Report and Declaration of Beth Knobel, Ph.D. at 4-5, Fox News Network, LLC, v. TVEyes, Inc., No. 1:13-CV-05315 (SDNY 2015) (No. 100), hereinafter “Knobel declaration” (“it was easy for me to download an entire episode of NBC Nightly News with Brian Williams without commercials from TVEyes in five high definition video clips”).

Second, at the time, broadcast monitors voluntarily restricted against redistribution and rebroadcast of clips by clients. 13News monitoring hearing at 29. TVEyes, however, allegedly encourages customers to post, redistribute, and email content. 14See Knobel declaration at 26, “the TVEyes Content-Delivery Features are designed to encourage users to download and publicly distribute video clips. TVEyes also touts the ability to use these features for those purposes in its marketing materials and in communications with its clients.”

Finally, there has been a marked shift in technology and the television news market. In the 1990s, as Waggoner observed,

[B]roadcasters themselves do not currently service or exploit the demand for monitored, after-broadcast news programming. They have not demonstrated any interest in doing so. Most broadcasters make previously-aired programming available to the public on a casual or delayed basis, if at all. The public’s interest in having consistent, complete and immediate access to broadcast news programming is not now well served by broadcasters. 15News monitoring hearing at 264.

That is no longer the case. Viewers are increasingly watching shorter video clips online rather than linear television. 16See, e.g., Lara O’Reilly, Most Young People Say They Have Stopped Watching TV, Business Insider (Jan. 26, 2015). As Knobel points out, “the television news business has invested significant resources to make content available through digital distribution and has developed established markets to support such distribution, including website and mobile-device-based advertising, extensions of cable or satellite subscriptions (e.g., TVEverywhere), and clip licensing.” 17Knobel declaration at 4. Thus, services like TVEyes have a more direct impact on the market for broadcasters nowadays. Their reproduction and distribution of clips means they “stand[] to profit from exploitation of the copyrighted material without paying the customary price,” a factor “that tends to weigh against a finding of fair use.” 18See, Harper & Row Publishers, Inc. v. Nation Enterprises, 471 US 539, 562 (1985) (“The fact that a publication was commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use… The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.”). Fair use was intended to be a flexible doctrine, so it should be able to account for such shifts in the market.

Oral arguments on the current motions are scheduled for July 9.

References   [ + ]

1. Fox News Network, LLC v. TVEyes, Inc., 43 F. Supp. 3d 379 (SDNY 2014); see also my post, Fox News v TVEyes: Fair Use Transformed.
2. S.3229, 101st Cong. (2nd Sess. 1990).
3. Copyright Amendments Act of 1991 Hearings before the H. Subcomm. on Intellectual Property and Judicial Administration of the Comm. on the Judiciary on H.R. 2372, 101st Cong. (1991).
4. 744 F.2d 1490 (11th Cir. 1984), cert. denied, 471 U.S. 1004 (1985).
5. E.g., Cable News Network, Inc. v. Video Monitoring Services of America, Inc., Civ. No. 1:88-CV-2660-JOF (N.D. Ga. Jan. 9, 1990); NBC Subsidiary (KCNC-TV) v. Video Monitoring Services of America, Inc., Civ. No. 88-Z-234 (D. Colo. July 27, 1989); Georgia Television Co. v. TV News Clips of Atlanta, Inc., 9 U.S.P.Q. 2d (BNA) 2049 (N.D. Ga. 1989).
6. S. 1805, 102nd Cong. (1st Sess. 1991).
7. News monitoring: Hearing before the S. Subcomm. on Patents, Copyrights, and Trademarks of the Committee on the Judiciary on S. 1805, a bill to amend Title 17, United States Code, to clarify news reporting monitoring as a fair use exception to the exclusive rights of a copyright owner, 102nd Cong. (1992), hereinafter “News monitoring hearing”.
8. International Association of Broadcast Monitors President Ed Moser separately testified during this hearing, but his statement largely echoed Cohen’s points.
9. Patterson’s argument that it was wrongly decided was that the Eleventh Circuit’s permanent injunction “gave perpetual copyright protection, unlimited in nature, to protect uncopyrightable as well as abandoned material, and this is wholly contra to what the 1976 Copyright Act provides.” This appears to erroneously conflate right with remedy.
10. S. 23, 103rd Congress, 1st Sess. (1993).
11. News monitoring hearing at 265-266.
12. See Expert Report and Declaration of Beth Knobel, Ph.D. at 4-5, Fox News Network, LLC, v. TVEyes, Inc., No. 1:13-CV-05315 (SDNY 2015) (No. 100), hereinafter “Knobel declaration” (“it was easy for me to download an entire episode of NBC Nightly News with Brian Williams without commercials from TVEyes in five high definition video clips”).
13. News monitoring hearing at 29.
14. See Knobel declaration at 26, “the TVEyes Content-Delivery Features are designed to encourage users to download and publicly distribute video clips. TVEyes also touts the ability to use these features for those purposes in its marketing materials and in communications with its clients.”
15. News monitoring hearing at 264.
16. See, e.g., Lara O’Reilly, Most Young People Say They Have Stopped Watching TV, Business Insider (Jan. 26, 2015).
17. Knobel declaration at 4.
18. See, Harper & Row Publishers, Inc. v. Nation Enterprises, 471 US 539, 562 (1985) (“The fact that a publication was commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use… The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.”).

Before there was a Bill of Rights, the United States had copyright. Twelve of the thirteen states had already positively secured authors’ exclusive rights by the time the drafters of the Federal Constitution gave the federal Congress power to enact copyright legislation. On May 31, 1790—225 years ago this week—President George Washington signed the first federal Copyright Act into law.

A lot has been said in the past two centuries about what the goals and purposes of copyright law should be. What would the outcome of an ideal legal framework look like? For many, the focus is on creation and dissemination of knowledge, or participation in culture. But others have shifted the focus from the works that copyright encourages to the authors it secures.

Devotion to Craft

When writing about “The Next Great Copyright Act,” current Register of Copyrights Maria Pallante said:

The issues of authors are intertwined with the interests of the public. As the first beneficiaries of the copyright law, authors are not a counterweight to the public interest but are instead at the very center of the equation. In the words of the Supreme Court, “[t]he immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.”

Congress has a duty to keep authors in its mind’s eye, including songwriters, book authors, filmmakers, photographers and visual artists. Indeed, “[a] rich culture demands contributions from authors and artists who devote thousands of hours to a work and a lifetime to their craft.” A law that does not provide for authors would be illogical—hardly a copyright law at all. And it would not deserve the respect of the public. 136 Columbia Journal of Law & the Arts 315, 340 (2013).

The Copyright Office, in fact, has a long tradition of placing authors and authorship at the center of copyright law. Former Register Barbara Ringer, who was in office 1973-1980, wrote during her tenure:

I believe it is society’s duty to go as far as it can possibly go in nurturing the atmosphere in which authors and other creative artists can flourish. I agree that the copyright law should encourage widespread dissemination of works of the mind. But it seems to me that, in the long pull, it is more important for a particular generation to produce a handful of great creative works than to shower its schoolchildren with unauthorized photocopies or to hold the cost of a jukebox play down to a dime, if that is what it is these days. 2The Demonology of Copyright, R.R. Bowker Memorial Lecture (October 24, 1974).

It is not just Registers of Copyright who have made these points. In 1954, the US Supreme Court wrote that the economic philosophy of copyright is the “conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’” 3Mazer v. Stein, 347 U.S. 201, 219 (1954). It spoke of “Sacrificial days devoted to such creative activities,” and said this devotion is deserving of “rewards commensurate with the services rendered.”

A New York court, in a case involving unauthorized reproduction of sound recordings of opera performances, repeatedly emphasized the great expenditures of authors before finding in favor of the plaintiffs. It said, “To refuse to the groups who expend time, effort, money and great skill inproducing these artistic performances the protection of giving them a ‘property right’ in the resulting artistic creation would be contrary to existing law, inequitable, and repugnant to the public interest.” 4Metropolitan Opera Association v. Wagner-Nichols R. Corp., 199 Misc. 786, 802 (NY Sup 1950).

The common thread through these quotes is the emphasis on continued labor—”thousands of hours” and “sacrificial days”—craft, and pursuit of private gain. The focus is thus on the author. But, more importantly, these quotes speak of not just any type of authorship, but of sustained authorship. Copyright protects all authors, but it covets professional authors.

Promoting Art and Science

One can go back to the dawn of US copyright law to see that sustained and professional authorship has been repeatedly stated as an end of copyright.

Some spoke of authorship that requires the devotion of significant periods of time. For example, when Joel Barlow lobbied the Continental Congress to recommend copyright protection in 1783, he argued, “As we have few Gentlemen of fortune sufficient to enable them to spend a whole life in study, or enduce others to do it by their patronage, it is more necessary, in this country than in any other, that the rights of authors should be secured by law.” 5Letter from Joel Barlow to the Continental Congress (1783) (emphasis added).

Several years later, as ratification of the Constitution was being debated, Pennsylvania delegate Thomas McKean said, “[T]he power of securing to authors and inventors the exclusive right to their writings and discoveries, could only with effect be exercised by Congress. For, sir, the laws of the respective States could only operate within their respective boundaries, and therefore, a work which has cost the author his whole life to complete, when published in one State, however it might there be secured, could easily be carried into another State, in which a republication would be accompanied with neither penalty nor punishment—a circumstance manifestly injurious to the author in particular, and to the cause of science in general.” 6Thomas McKean, Speaking at the Pennsylvania Convention on the Ratification of the Federal Constitution (emphasis added).

Others spoke explicitly about profits. The Connecticut Copyright Act, passed in 1783, begins by stating, “Whereas it is perfectly agreeable to the Principles of natural Equity and Justice, that every Author should be secured in receiving the Profits that may arise from the Sale of his Works, and such Security may encourage Men of Learning and Genius to publish their Writings, which may do Honour to their Country, and Service to Mankind.” 7Act of Jan. 29, 1783 (Conn.) (emphasis added).

Thomas Paine, whose work embodied many of the ideals of the young republic, connected the two, writing: “Hitherto it hath been a disinterested volunteer in the service of the revolution, and no man thought of profits: but when peace shall give time and opportunity for study, the country will deprive itself of the honour and service of letters and the improvement of science, unless sufficient laws are made to prevent depredations on literary property.” 8Letter to Abbe Raynal (1792) (emphasis added).

The language in the Constitutional grant of authority for copyright, “to promote the progress of science and useful arts”, is also found in discussion of education and educational institutions, demonstrating parallels between the work of being an author and the work of being a student.

For example, one of the Congressional powers proposed at the same time as the copyright and patent powers during the Constitutional Convention read, “To establish seminaries for the promotion of literature and the arts and sciences.9Farrand, Records of the Federal Convention 322 (emphasis added). Similarly, in his first State of the Union address, George Washington told Congress, “Nor am I less persuaded that you will agree with me in opinion that there is nothing which can better deserve your patronage than the promotion of science and literature” (emphasis added). After extolling the benefits of such promotion, Washington concluded, “Whether this desirable object will be best promoted by affording aids to seminaries of learning already established, by the institution of a national university, or by any other expedients will be well worthy of a place in the deliberations of the legislature.”

James Madison, who was pivotal in ensuring the federal government would have power to secure copyrights, also used similar language when referring to education. In an 1822 letter, Madison wrote in support of “liberal appropriations made by the Legislature of Kentucky for a general system of Education,” saying,

Throughout the Civilized World, nations are courting the praise of fostering Science and the useful Arts, and are opening their eyes to the principles and the blessings of Representative Government. The American people owe it to themselves, and to the cause of free Government, to prove by their establishments for the advancement and diffusion of Knowledge, that their political Institutions, which are attracting observation from every quarter, and are respected as Models, by the new-born States in our own Hemisphere, are as favorable to the intellectual and moral improvement of Man as they are conformable to his individual & social Rights. What spectacle can be more edifying or more seasonable, than that of Liberty & Learning, each leaning on the other for their mutual & surest support? 10Letter from James Madison to W. T. Barry (August 4, 1822) (emphasis added).

While it’s certainly the case that the efforts of authors promotes learning in the general public, one could also say one of the ends of copyright is to encourage learning by authors themselves. This aligns with Barlow’s observation above that the rights of authors need to be secured in order to enable them to “spend a whole life in study.” This study, in turn, allows authors to produce those works which advance the arts and sciences.

It’s interesting to note another connection between copyright and enabling professional authorship. The first Copyright Act secured protection for 14 years (plus an optional 14 year renewal period). This term was borrowed from England’s Statute of Anne (1710). The Statute of Anne, in turn, took its 14 year term from the earlier Statute of Monopolies (1624), which prohibited monopolies save for “letters patent and grants of privileges” for “new manufactures”—an antecedent to modern day patents.

This fourteen year term was chosen because “it was twice the statutorily prescribed, seven year term of trade apprenticeship.” 11Christine MacLeod, Inventing the Industrial Revolution: The English Patent System, 1660-1800, p. 18 (Cambridge Univ. Press 2002). So the law was built explicitly around the learning and mastery of a craft, a foundation inherited by the first US Copyright Act.

Professional Authorship

The late Latin American author Gabriel García Márquez once said, “I cannot imagine how anyone could even think of writing a novel without having at least a vague of idea of the 10,000 years of literature that have gone before.” 12Jonathan Kandell, Gabriel García Márquez, Conjurer of Literary Magic, Dies at 87, New York Times (April 17, 2014). Authorship which advances the sciences and arts requires the development and mastery of craft as well as a considerable expenditure of time and effort. History shows that one of copyright’s recognized goals is to furnish the conditions that encourage this.

References   [ + ]

1. 36 Columbia Journal of Law & the Arts 315, 340 (2013).
2. The Demonology of Copyright, R.R. Bowker Memorial Lecture (October 24, 1974).
3. Mazer v. Stein, 347 U.S. 201, 219 (1954).
4. Metropolitan Opera Association v. Wagner-Nichols R. Corp., 199 Misc. 786, 802 (NY Sup 1950).
5. Letter from Joel Barlow to the Continental Congress (1783) (emphasis added).
6. Thomas McKean, Speaking at the Pennsylvania Convention on the Ratification of the Federal Constitution (emphasis added).
7. Act of Jan. 29, 1783 (Conn.) (emphasis added).
8. Letter to Abbe Raynal (1792) (emphasis added).
9. Farrand, Records of the Federal Convention 322 (emphasis added).
10. Letter from James Madison to W. T. Barry (August 4, 1822) (emphasis added).
11. Christine MacLeod, Inventing the Industrial Revolution: The English Patent System, 1660-1800, p. 18 (Cambridge Univ. Press 2002).
12. Jonathan Kandell, Gabriel García Márquez, Conjurer of Literary Magic, Dies at 87, New York Times (April 17, 2014).