January 09, 2014 · · Comments Off

When the U.S. passed its first copyright law in 1790, it was only the second nation in the world to have a modern copyright act. The U.S. Copyright Act only protected works of American authors. But within only a few decades, more nations began protecting copyright, and the recognition that international protection was necessary began to grow. U.S. authors and publishers, concerned about the inability to protect their works abroad and the difficulty of competing with cheap British imports, began rumblings for international protection as early as the 1830s.1

On April 9, 1868, U.S. publisher George P. Putnam chaired a meeting of the “International Copyright Association”, a group of authors and publishers recently created to advocate on behalf of international copyright protection. Among those who spoke was Francis Lieber, a German-American jurist. Lieber begins by noting that opponents of international copyright have long used the same arguments. Some of this may sound familiar even today.

It is maintained that there is no such thing as literary property. What is called so is simply the effect of laws, judiciously or injudiciously enacted; it is an arbitrary creature of the law; and secondly, expediency leads us to prevent an International Copyright. Let us have books as cheap as possible.

The chief value of the latter reason depends on the first; for if there is such a thing as a right of real property in literary productions, as natural and direct as there is in a bushel of wheat for the farmer, if he is the producer, the argument founded on expediency, even if this could be made good, would have no more value than a recommendation of obtaining flour cheaper by stealing, than by honestly purchasing it. Right and wrong are not defined or confined by the blue or red colors of political demarcations on the map, any more than that they apply to religion, or mathematics, or music. Nay, allow a teacher of the law of nations to say that it is one of the characteristics of our progressive civilization, that as it advances, it takes more and more from the meaning of the colors of the map, reducing them more and more to a political meaning alone.

Is there such a thing as literary property? The main roots of all property whatsoever are appropriation and production, diffused and accumulated by exchange. Why? Is it, because, as the saying used to be, property is the creature of Government? By no means. Property invariably precedes government, as many other institutions do. It is because every human being is as conscious as of his own identity, that if he appropriates what belongs to no one—for instance, the trunk of a tree—and if he produces a new thing—for instance a canoe out of that tree—this appropriation, or this product, is verily his own; that he can do with it what he likes, and that every one who in turn attempts to appropriate it without the process of exchange, is an intruder, a robber, and the attempt will not only be resisted but resented. The whole right of property, however developed and ramified in a code of laws it may be, rests on this primordial consciousness of mine and thine—on appropriation and production; and I now appeal to the intuitive conviction of every living man to say whether a literary work, say Baker’s description of his toilsome journeys in Africa, or a Faust of Goethe, a musical composition, say a requiem by Mozart, is not a production in the fullest sense of the word, even more so than a barrel of herrings which have been appropriated in the North Sea, pickled and barrelled by the fisherman; and whether any one has a right to meddle with this property by production, any more than you or I have to meddle with the barrel of herrings.

But, say our opponents, that which you call the literary work consists of ideas which were common property, gathered, strung together. They belong to the common civilization, and cannot constitute property. Indeed! why not go further? The alphabet used in every book is common property; the words of which it consists have been published long ago in dictionaries.

We do not claim property in ideas, any more than Beethoven claimed property in the tones he indicated, or the laws of harmony and disharmony which the Creator has indelibly implanted in the human soul; but he justly claimed by natural right the ownership of his symphonies, and, therefore, the exclusive right of multiplying them by signs and on material. He deeply resented their piratical reprint.

An author, or a composer, or an artist is what he is, in a very great measure indeed, in consequence of the civilization of his times or of the ideas which, erroneously and inelegantly, are declared common property; but is the farmer what he is, less by the common civilization in which his existence has fallen? Does the farmer, perchance, create his grain, or does he only produce, that is, dispose his combining and shaping agency so that with the help of the natural agents his labor results in, the grain? His share in agricultural production is small, indeed, compared to the share which the author, or composer, or sculptor has in the production of his work. But the question is really more positively and directly answered by asking: Do you, or do you not, feel and know that Paradise Lost was Milton’s own, and that in the world of exchange to which, by divine decree, all of us must go for subsistence, he had an exclusive right to dispose of his work?

If literary property is merely a thing so called; if there is no natural right of literary property, why does our law and the municipal law of every civilized country acknowledge and protect it in each respective country? There is no exception to it. And if literary property is real property, why not acknowledge and protect it internationally, as all righteous property is?

To the objection that literary property is of a very recent date, which is said to prove that, like the patent law, it is altogether a legal invention, and originates from no natural right, I would simply reply that literary property was claimed as soon as it obtained importance in the market, that is, immediately after the invention of the art of printing. There is a passage in the works of Dr. Martin Luther, in which he asks the “Sirs Printers” why they rob one another, and make money of what belongs to another, leaving only loss and dissatisfaction to him who incurred all the expenses in order to get out a book; and it will be remembered how short a time there elapsed between the humanizing invention of the art of printing and the great translation of the Bible by one man—Martin Luther. As to International Copyright, it belongs to our century indeed; but the whole law of nations has made its greatest strides only in recent times. Down to this century, the highest statesmanship was believed to consist in the greatest amount of injury that could be done to a neighbor. The barbarous confusion of foreigner and enemy still somewhat adhered to our race. Now it is gladly acknowledged in the commonwealth of nations to which we belong that the great law of good neighborhood, all-important among individuals, is not less so among nations, and the existing positive law of nations shows us that treaties are in force between Germany, France, England, Italy, internationally protecting literary and aesthetical copyright. Why should we lag behind? We, whose boast it is to honor and protect human rights with eager jealousy, should we, of all leading nations, disregard the right of property, because the owner is a foreigner?

Speech of Francis Lieber, Meeting of Authors and Publishers at the Rooms of the New York Historical Society, April 9, 1868.

Footnotes

  1. See, e.g., “International Copyright“, the New Yorker (Oct. 12, 1839). []

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“[W]ithout question, the exercise of the [copyright] power has operated as an encouragement to native genius, and to the solid advancement of literature and the arts.”1

September 17 marks “Constitution Day” in the United States, a day that commemorates the approval of the final draft of the Constitution by the U.S. Constitutional Convention delegates in 1787.2 Copyright is the subject of one of Congress’s few enumerated powers; Clause 8 of Section 8 of Article 1 says that  “The Congress shall have power … 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.”

The story of how the United States became only the second nation in history to recognize a modern day version of copyright is one of authors and ideals. There was no publishing industry to speak of in Colonial America. What few printers did exist in the thirteen original states by the time of the Revolution focused mostly on government printing or newspapers. Horace Scudder, a 19th century biographer of Noah Webster (more on him later) wrote of the time, “Literature in its finer forms had but slender encouragement. The absence of easy communication, the poverty of the people, the dispersion of the population, gave little chance for bookstores and circulating libraries and private accumulation.”3

As in many parts of Europe and Great Britain, exclusive publishing privileges had at times been granted to individuals in the colonies, but these were rare.4 It was not until after the Revolutionary War that we would see the push for copyright begin in earnest.

Copyright before the Constitution

Thomas Paine, who is best known in U.S. history for his 1776 pamphlet Common Sense, immensely influential in calling for independence from Great Britain, also “counted copyright agitation among his many other revolutionary interests.”5 In a 1782 pamphlet, Paine used the introduction to call attention to the pirating of works by French writer Abbe Raynal, saying “It may with propriety be remarked, that in all countries where literature is protected, and it never can flourish where it is not, the works of an author are his legal property; and to treat letters in any other light than this, is to banish them from the country, or strangle them in the birth.”6 Paine added, in a passage that demonstrated that his thoughts on copyright were consistent with the Republican ideals he espoused in his political writings,

The state of literature in America must one day become a subject of legislative consideration. 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.

These sentiments were shared by Noah Webster, who wrote in a letter to Connecticut representative John Canfield, “America must be as independent in literature as in Politics, as famous for arts as for arms.”7

Webster, who would go on to create the dictionary bearing his name, played perhaps the most pivotal role in getting states to recognize copyright. Having recently completed his second book on grammar and spelling for schoolchildren, Webster began efforts to lobby the states for copyright laws, beginning in New Jersey in 1782. Then, on to Connecticut in October of that year (at which time he wrote the letter quoted above), returning in January of 1783 where he learned of the plans to pass a general copyright act.

On January 6, 1783, author and explorer John Ledyard had petitioned the Connecticut General Assembly for copyright protection for his latest work, A Journal of Captain Cook’s Last Voyage to the Pacific Ocean. On January 29, 1783, the General Assembly instead passed a general copyright statute, the first in the colonies.

Titled “An Act for the Encouragement of Literature and Genius”, the statute’s preamble indicated its foundations in natural rights and its goals to encourage publication, which was seen as providing a benefit to the public and the nation.

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.

The statute also provided a public interest requirement that authors and publishers provide sufficient copies of books at reasonable prices.

Along with Ledyard and Webster, others were striving for a copyright act, including historian Jeremy Belknap and author and politician Joel Barlow. Barlow wrote to Elias Boudinot, president of the Continental Congress in 1783, calling on him to protect the rights of authors. Barlow’s letter would end up playing an influential role in the foundations of U.S. copyright law. It both pressed the issue forward and established its starting points. Barlow’s exhortation for protecting the natural rights of authors would be reflected in the Continental Congress’s and State’s language to follow, and his suggestion to follow the Statute of Anne was also heeded.

In it, Barlow also echoed the appeals to pride in the new nation that Paine and Webster used. Said Barlow,

America has convinced the world of her importance in a political & military line by the wisdom, energy & ardor for liberty which distinguish the present era. A literary reputation is necessary in order to complete her national character; and she ought to encourage that variety & independence of genius, in which she is not excelled by any nation in Europe. 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.

According to Continental Congress records, the Connecticut Act was forwarded to the Continental Congress two days after it was proposed, on January 8th, followed another two days later by Barlow’s letter.8

Continental Congress representative Hugh Williamson of North Carolina moved that a committee be formed “to consider the most proper means of cherishing genius and useful arts through the United States by securing to authors or publishers of new books their property in such works.” That motion carried on March 10th, with the Congress appointing a committee consisting of Williamson, Ralph Izard of South Carolina, and James Madison.

On May 2, the committee issued its report. Records indicate the committee “to whom were referred sundry papers and memorials from different persons on the subject of literary property, [are] persuaded that nothing is more properly a man’s own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius.”9 The Continental Congress issued a recommendation encouraging States to pass copyright legislation. By that time, Massachusetts and Maryland had already joined Connecticut in passing a general copyright law. It is likely that Noah Webster shared some responsibility for the the Massachusetts law, as he had been in that state, along with New York, that winter to lobby the representatives.

The Massachusetts copyright act began with a preamble explaining the foundations and motivations for the law:

Whereas the improvement of knowledge, the progress of civilization, the publick weal of the Commonwealth, and the advancement of human happiness, greatly depend on the efforts of learned and ingenious persons in the various arts and sciences: As the principal encouragement such persons can have to make great and beneficial exertions of this nature, must exist in the legal security of the fruits of their study and industry to themselves, and as such security is one of the natural rights of all men, there being no property more peculiarly man’s own than that which is produced by the labour of his mind.

After the Continental Congress’s recommendation, Webster redoubled his efforts, visiting the “middle and southern states” in May 1785. That November, Webster visited General Washington, who gave him letters addressed to members of the Virginia legislature to assist Webster in his efforts. Webster also lobbied James Madison personally to pass a copyright act, including through a letter to the Virginiana legislator in 1784. Madison would eventually write the act himself. The bill, “An act for securing to the authors of literary works an exclusive property therein for a limited time,” was presented to the Virginia House of Delegates by Madison on November 16, 1785.

Webster’s successful run fell short, however, when he reached Delaware. He petitioned the legislature, saying

Among all modes of acquiring property, or exclusive ownership, the act or  operation of creating or making seems to have the first claim. If anything can justly give a man an exclusive right to the occupancy and enjoyment of a thing it must be that he made it. The right of a farmer and mechanic to the exclusive enjoyment and right of disposal of what they make or produce is never questioned. What, then, can make a difference between the produce of muscular strength and the produce of the intellect?

But while a committee was formed to draft a copyright bill, the bill was deferred at the end of the legislative session, never to resume. All in all though, not too bad. Following the Continental Congress’s recommendation, twelve of the thirteen original states — all but Delaware — had enacted copyright legislation within three years. And over half, like Massachusetts, referred explicitly to the natural rights foundation of the law.10

Toward a Federal Copyright Power

Within a year of the last state copyright act going into effect (That honor goes to New York, which passed a copyright act on April 29th, 1786) there were calls to amend the Articles of Confederation that governed the Continental Congress. Once this Convention assembled however, in May 1787, delegates agreed that the goal was not amendment but drafting of an entirely new Constitution. From that point, the delegates moved quickly:

The Convention kicked off May 14, 1787. On June 23, a Committee on Detail was established to draft a document that incorporated the various plans and proposals from the Convention. The Committee presented the first draft of the Constitution to the Convention on August 6. On September 8, a Committee on Style was created to incorporate changes brought up by delegates after discussing the first draft and revise the text of the Constitution. This Committee presented the final draft to the Convention on September 12, who ratified and signed it on September 17. And that’s how you make an America.11

James Madison played a pivotal role in drafting the Constitution. In the April before the Convention, he sat down to write a memorandum to the chairman of the Convention detailing a dozen Vices of the Political System of the United States. Among these vices was a “want of concert in matters where common interest requires it.” Madison wrote that this defect was most noticeable concerning commercial affairs, but it was also felt in “the want of uniformity in the laws concerning naturalization & literary property.”

Considering the enormity of the issues facing the delegates, it should not be surprising that copyright was not a high priority. It was not included in the first draft of the Constitution, on August 6, and would not be proposed until the waning days of the Convention.12

On August 18, James Madison and Charles Pinckney proposed a number of enumerated powers to vest in the legislative branch of the federal government. Among these, Madison proposed that Congress have the power “to secure to literary authors their copyrights for a limited time” while Pinckney proposed the similar power “to secure to authors exclusive rights for a certain time.” All were referred to the Convention’s Committee on Detail without discussion.13 The final version of the Copyright Clause (which also incorporated a authority to secure patents) was presented to the Convention on September 5, where it was agreed to without any objections.14 There is no evidence that the change in wording between the proposed powers and the final version was intended to be substantive rather than merely stylistic.

The Copyright Clause in the Court of Public Opinion

After September 17, the newly drafted Constitution went to the Continental Congress for approval on September 28, and then referred to the states to be ratified. Reflecting the low amount of attention the power received during the Convention, there were few mentions of the power during ratification debates.

James Madison did refer to the Clause in the Federalist Papers, written along with John Jay and Alexander Hamilton to drum up support for ratifying the Constitution, but only once, and only very briefly. In Federalist Papers 43, Madison wrote

The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.

George Mason, a delegate to the Continental Convention from Virginia became one of the Constitution’s most strenuous critics, and penned a series of Objections explaining his reasons for not signing the final draft. Among these, he warned that “Under their own construction of the general clause at the end of the enumerated powers, the Congress may grant monopolies in trade and commerce, constitute new crimes, inflict unusual and severe punishments, and extend their power as far as they shall think proper.”15 Mason was referring to the Necessary and Proper Clause. But this and his other objections drew a response from North Carolina’s James Iredell, a strong supporter of the Constitution and future Supreme Court Justice. Iredell explained that the Necessary and Proper Clause was not an independent grant of authority; it could only be exercised in conjunction with authority that the Constitution expressly granted Congress. Iredell then went on to confirm that none of Mason’s specific dangers could come to fruition through Congress’s delegated powers. When he looked at the possibility that “Congress may grant monopolies in trade and commerce,” Iredell remarked in a footnote

One of the powers given to Congress is, “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.” I am convinced Mr. Mason did not mean to refer to this clause, he is a gentleman of too much taste and knowledge himself to wish to have our government established upon such principles of barbarism as to be able to afford no encouragement to genius.16

At another point in his answer to Mason’s objections, Iredell noted that Congress could not infringe the freedom of speech and press through the Copyright Clause:

The liberty of the press is always a grand topic for declamation, but the future Congress will have no other authority over this than to secure to authors for a limited time an exclusive privilege of publishing their works. This authority has been long exercised in England, where the press is as free as among ourselves or in any country in the world; and surely such an encouragement to genius is no restraint on the liberty of the press, since men are allowed to publish what they please of their own, and so far as this may be deemed a restraint upon others it is certainly a reasonable one, and can be attended with no danger of copies not being sufficiently multiplied, because the interest of the proprietor will always induce him to publish a quantity fully equal to the demand-besides, that such encouragement may give birth to many excellent writings which would otherwise have never appeared.17

We see the Clause come up during the Pennsylvania ratification debates as well, where it was mentioned by influential politician Thomas McKean, who was addressing possible objections to the Constitution. He noted none regarding the clause, pointing out instead the need for national uniformity in protecting authors.

[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.18

The Constitution would eventually be ratified by the States, and it went into effect on March 4, 1789. The first Congress exercised its authority under the Copyright Clause not too long after, with George Washington signing into law the first U.S. copyright act on May 31, 1790.

Footnotes

  1. Joseph Story, Commentaries on the Constitution of the United States, Book 3, Chapter 19 (1833). []
  2. 36 U.S.C. § 106. []
  3. Horace Scudder, Noah Webster: American Man of Letters (Boston: 1890). []
  4. The first was granted to John Usher in 1672 to print and publish the laws of the Massachusetts colony. The first attempt by an author, rather than a publisher, to seek exclusive rights to his work came in 1772 from musician William Billings, though he was ultimately unsuccessful. []
  5. John William Tebbel, 1 A History of Book Publishing in the United States 138 (1972). []
  6. Paine, On the Affairs of North America: In Which the Mistakes in the Abbe’s Account of the Revolution of Amreica [sic] are Corrected and Cleared Up (1782). []
  7. Oren Bracha, Commentary on the Connecticut Copyright Statute 1783, in Primary Sources on Copyright (1450-1900), (2008). citing Noah Webster, Letters of Noah Webster ed. H.R. Warfel (New York: Literary Publishers, 1953), 1-4. []
  8. 24 Journals of the Continental Congress 211 (1783). []
  9. 24 Journals of the Continental Congress 326. []
  10. The others included Connecticut, Georgia, New Hampshire, North Carolina, New York, and Rhode Island. []
  11. Copyright and the Constitution (September 12, 2010). []
  12. Some suggest that South Carolina delegate Charles Pinckney included authority to secure copyrights in the Plan he submitted on May 28th, which would move the genesis of the clause a few months earlier. However, at least one scholar has concluded that the evidence does not support this. See Dotan Oliar, The (Constitutional) Convention on IP: A New Reading, 57 UCLA Law Review 421 (2009). []
  13. 2 The Records of the Federal Convention of 1787, at 321–22, 324–35. []
  14. Id. at 509. []
  15. Objections of the Hon. George Mason, one of the Delegates from Virginia in the Late Continental Convention, to the Proposed Federal Constitution; Assigned as His Reasons for not Signing the Same (Oct. 1787). []
  16. Reprinted by Griffith John McRee in Life and correspondence of James Iredell, vol. 2, pg. 186 (1863). []
  17. Answers to Mr. Mason’s Objections to the New Constitution Recommended by the Late Convention at Philadelphia, in Pamphlets on the Constitution of the United States, pg. 361. Alexander Hamilton implicitly made a similar argument regarding the liberty of the press and the copyright clause in the Federalist Papers number 84, when he wrote, “Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?” []
  18. Thomas McKean Speaking at the Pennsylvania Convention on the Ratification of the Federal Constitution. []

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Yesterday, the Electronic Frontier Foundation provided a “reality check” of recent comments by MPAA CEO Chris Dodd regarding the current review of copyright law in the U.S. In a blog post titled Looking Deeper into MPAA’s Copyright Agenda, the organization writes the following:

Don’t Be So Sure You’ve Got The Founders On Your Side

Dodd claims that copyright as we know it is what “the founders of this republic intended.” Hardly. The first copyright act in the U.S, passed in 1790 by some of the same people who helped write the Constitution and the Bill of Rights, was very limited. It covered only books, maps, and charts – not music, theater, pamphlets, newspapers, sculpture, or any other 18th-century creative medium.  The Founders’ copyrights lasted 14 years, with an option to renew for another 14.  Today, of course, copyright covers nearly all written, visual, sculptural, architectural, and performing art, not to mention computer software and games, and it lasts for the author’s life plus 70 years.  We suspect that if anyone had described today’s copyright system to, say, Thomas Jefferson, he would have been shocked.  By all means, let’s look at how the Founders thought copyright should work, as one guidepost for fixing today’s law.

But as is true with much the organization says, the EFF’s “reality check” falls far short of reality — specifically concerning the subject matter covered by the 1790 Copyright Act.

It’s true the statute only refers to “books,” but the term was far broader. It included even a single page.1 Certainly pamphlets and newspapers were covered by the Act, though publishers of such rarely secured copyright protection, likely because the onerous registration requirements of the Act far outweighed the ephemeral quality of such publications.2

English courts have held musical compositions to fall within the Statute of Anne (which, serving as the inspiration for the US Copyright Act, also referred to “books”) since 1777.3 In the same manner, the 1790 U.S. Act likely included music in printed form — indeed, US composers began to register musical works not too long after the statute went into effect.4

Theatrical performances weren’t protected under the 1790 Act, but, as with musical compositions, written plays were protected as books. Again, the earliest copyright registration for theatrical works began within a decade of the Act.5 (Theatre took a while to rebuild during this period in large part because the Continental Congress had banned it during the Revolutionary War.)6

The EFF is technically correct that the 1790 Act didn’t include many visual works that are protected today, but if we are looking more generally at what the Founders thought of copyright, than even this point does not hold true. The Supreme Court would hold in 1884 that photographs were susceptible to copyright protection under the 1802 Copyright Act, and specifically pointed out that this act was enacted by “men who were contemporary with its formation, many of whom were members of the convention which framed it.”7 And the Court was correct; the bill was drafted by Sen. Stephen Bradley, a colonel in the Revolutionary War and a politician active in Vermont starting before the ratification of the United States, and signed into law by President Thomas Jefferson — the same Thomas Jefferson who apparently would’ve been shocked that today’s copyright covered visual works (the bill also, concidentally, doubled the statutory damages available to copyright owners).8 In addition, though motion pictures were not explicitly included as copyrightable subject matter in the Copyright Act until 1912,9 early film producers such as Thomas Edison began registering films as still photographs in the early 1890′s, a practice upheld in court.10

It is true that sculptural works were not brought within the scope of copyright law until 1870 (though limited protection under design patent provisions were available beginning in 1842).11 But copyright for sculptures is not exactly a hot button issue these days.

It’s also true that, unlike under the 1790 Act, nearly all written expression is covered under copyright law today. However, such expression was, so long as it remained unpublished, protected under common law copyright. And, unlike today, common law copyright was perpetual and not subject to traditional defenses such as fair use or first sale.12

What’s curious is that the EFF would focus so much on the provisions rather than the principles of early U.S. copyright law (never mind how incorrectly they stated the former) yet leave out so many provisions in current copyright law that the early acts lacked. For example, the 1790 Copyright Act included no statutory recognition of fair use, the first sale doctrine, or the idea/expression dichotomy; no prohibition on protecting government works by copyright;13 no exceptions for libraries, educational institutions, or non-profit groups; no centralized registration system or deposit requirement.

The grave inaccuracies contained in just a few short sentences should leave little surprise that the EFF is on shaky ground concluding that their views on copyright would be compatible with the Founders. Most Founders shared a philosophy that emphasized the primacy of private property — not just as a mechanism for prosperity but also as an essential component of a free society.14 Copyright (or literary property) was explicitly seen as a form of property by these same Founders.15 Early US copyright law is not some ideal we should gaze at with nostalgia. It had long been considered inadequate to achieve its goals of advancing the public interest and has only in recent decades evolved to provide meaningful rights to the creators that drive progress and innovation.

So it is more likely that the Founders would find current copyright law an improvement over the 1790 Act. As Thomas Paine, the Father of the American Revolution, wrote:

The state of literature in America must one day become a subject of legislative consideration. 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.16

The EFF is welcome, as it concludes in its post, to write about and promote “real copyright reform.” But it should try to do so without revisionist claims that it has history on its side.

Footnotes

  1. Robert Maugham, A Treatise on the Laws of Literary Property, pg. 74 (London 1828). []
  2. Meredith L. McGill, “Copyright“, in An Extensive Republic: Print, Culture, and Society in the New Nation, 1790-1840, pg. 199 (2010); note, too, that six of the thirteen original States explicitly included “pamphlets” within their colonial copyright statutes. []
  3. Bach v. Longman, 2 Cowp. 623 (1777). []
  4. Kevin Parks, Music & Copyright in America: Toward the Celestial Jukebox, pg. 4 (ABA Publishing 2012) (early works registered include The Rural Harmony, Being an Original Composition, in Three and Four Parts in 1793 and The Kentucky Volunteer, a New Song in 1794. []
  5. See, for example, John Burk, Bunker-Hill, “Copy-Right Secured According to Law [1797]. []
  6. Allison Sarah Finkelstein, “Unhappy Differences”: The American Revolution and the Disruption of the Course of Theatre in Virginia (April 23, 2008) (unpublished B.A. thesis, College of William & Mary). []
  7. Burrow-Giles Lithographic v. Sarony, 111 US 53 (1884). []
  8. William Patry, “Statutory Revision“, Copyright Law and Practice, n.108 (2000). []
  9. Act of August 24, 1912, Pub. L. No. 62-303, 62d Cong., 2d Sess., 37 Stat. 488. []
  10. Edison v. Lubin, 122 F. 240 (1903). []
  11. See Mazer v. Stein, 347 US 201 (1954). []
  12. See Did the 1976 Copyright Act Lessen the Orphan Works Problem? []
  13. One would recall that one of the early seminal cases in U.S. copyright law, Wheaton v. Peters, 33 US 591 (1834), involved the copying of Supreme Court opinions. []
  14. “Property must be secured or liberty cannot exist.” John Adams, Discourses on Davila, No. 13 (1790); “Let these truths be indelibly impressed on our minds: (1) that we cannot be happy without being free; (2) that we cannot be free without being secure in our property; (3) that we cannot be secure in our property if without our consent others may as by right take it away.” John Dickinson, Letters from a farmer in Pennsylvania to the inhabitants of the British Colonies, Letter xii (1767). []
  15. See, for example, Randolph J. May & Seth L. Cooper, The Constitutional Foundations of Intellectual Property, 8 Perspectives from FSF Scholars (2013); Paul Clement, Viet Dinh & Jeffrey Harris, The Constitutional and Historical Foundations of Copyright Protection, Center For Individual Freedom (2012); Myths from the Birth of US Copyright; Justin Hughes, Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 Southern California Law Review 993 (2006). []
  16. A Letter Addressed to the Abbe Raynal (1782). []

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Despite the “robust history” of treating copyright as property,1 “property talk” still makes some copyright skeptics nervous.

Most recently, calls for regressive copyright changes have tried to recast copyright protection as more like government regulation than property. In fact, in Copyright Unbalanced: From Incentive to Excess, released last November by the Mercatus Center, law professor Tom Bell appears to argue that this in and of itself is among the necessary changes to copyright law. One of his “Five Reforms for Copyright Law” is to “Reconceive ‘IP’ ['Intellectual Property'] as ‘Intellectual Privilege‘.” Forget about substance, the problem with copyright is semantics.

But too often, arguments against copyright as property are pushed through on shaky grounds. Recently, legal scholar Adam Mossoff responded to one common claim — one that states that “’traditional property rights in land’ is based in inductive, ground-up ‘common law court decisions,’ but that IP rights are top-down, artificial statutory entitlements.” A complete myth, says Mossoff. Traditional property rights in land were frequently throughout history created and extended through statute rather than common law courts.

I’d like to look at another common claim.

It’s just different

In Copyright Unbalanced, editor Jerry Brito begins his chapter by saying copyright is “a very different kind of property” than “traditional property.” In support of this claim, Brito points to the respective durations of each. As Brito explains, the “copyright clause allows Congress to establish copyrights for ‘limited times’ only. This means that unlike traditional property, copyrights must cease to belong to their owners at a certain point.”2 Brito is not alone in this argument; copyright skeptics have long made this argument. Lawrence Lessig, for example, perhaps the godfather of copyright skepticism, says in his 2006 book Code that the difference between copyright and what he calls “ordinary property” is recognized in the Constitution’s “limited times” language:

[N]ote the special temporality of this right: “for limited Times.” The Constitution does not allow Congress to grant authors and inventors permanent exclusive rights to their writings and discoveries, only limited rights… It does not give Congress the power to give them a perpetual “property” in their writings and discoveries, only an exclusive right over them for a limited time.

The Constitution’s protection for intellectual property then is fundamentally different from its protection of ordinary property.

But is it correct that copyright is fundamentally unlike “traditional” or “ordinary” property (whatever that is) because it has a cut-off date? Setting aside for now the fact that the Copyright Clause in the U.S. Constitution only applies to the United States — while every other country with copyright laws does limit its duration, I’m not aware that this limited duration is a constitutional requirement outside the U.S. Under Brito’s logic, it would apparently be easier to argue that copyright is property in, say, South Korea.3

Or is it?

If we consider property as a relationship between person and thing, than it should be easy to see that all property rights are limited in time. Until scientists discover a cure for death, property is limited in time to the life of its owner. After you die, you don’t own anything anymore; that specific relationship between person and thing is terminated. Who owns your property after you die is settled by — and this is important — positive law.

Because, if we’re talking about common law or natural law, as those who often advance such arguments are especially fond of talking about, the transfer of ownership upon death is far different. Nowadays, in very general terms, when you die, your property is disposed in the following manner: first, according to your will; next, if you have no will, then to your heirs according to the relevant state law; finally, if you have no heirs, then your property escheats to the state.

This is how William Blackstone explained the law in his Commentaries on the Laws of England. Said Blackstone:

The most universal and effectual way, of abandoning property, is by the death of the occupant; when, both the actual possession and intention of keeping possession ceasing, the property, which is founded upon such possession and intention, ought also to cease of course. For, naturally speaking, the instant a man ceases to be, he ceases to have any dominion: else, if he had a right to dispose of his acquisitions one moment beyond his life, he would also have a right to direct their disposal for a million of ages after him; which would be highly absurd and inconvenient. All property must therefore cease upon death, considering men as absolute individuals, and unconnected with civil society: for then, by the principles before established, the next immediate occupant would acquire a right in all that the deceased possessed.4

The “permanence” of property developed later, through civil law; first, through the right of inheritance, and later through the right to dispose of property through testament. Blackstone is clear: heirs had no natural right to inherit their parents’ property, and property owners had no natural right to “direct the succession of his property after his own decease.” Under natural law, all property lasts for “limited times”, becoming common property (part of the public domain) upon the death of the possessor. It is only through “the positive law of society” that a stable system of inheritance is created.

Blackstone’s Commentaries were hugely influential when they were published, referred to heavily by the drafters of the U.S. Constitution. While the bulk of public mentions of copyright during that time referred to it as property or literary property, I’m not aware of any explicit discussion of the “limited times” language in the Constitution and how it relates to copyright as property from the drafters.

However, there are roughly contemporary accounts of copyright that do recognize that its “limited times” do not take it outside the scope of “property.” In 1831, Congressman Gulian Verplanck delivered an address on literary property following the passing of the Copyright Act of 1831 — the first major general revision to U.S. copyright law. Verplanck argued that copyright was equivalent to other forms of property, how the “right of property in the productions of intellectual labour was as much founded in natural justice as the right of property in the productions of corporeal labour.” Said Verplanck:

Such too was the doctrine of the framers of our own constitution, as I maintained was quite evident from the peculiarity of their language on this point. They had not used any word, which would imply that they thought “to give rights to authors and inventors” but had authorized congress “to promote the progress of science and the useful arts by securing to authors or inventors the exclusive rights to their writings or inventions.” They clearly did not think they were enabling congress to give these rights, but presuming them to exist, they provided for protecting them by a legal remedy. The limitation of the term of legal exclusive enjoyment and protection was indeed the effect of positive law. But this limitation was precisely of the same nature with the terms of prescription of property and limitation of actions in all legal systems, which may be longer or shorter according to views of public policy, the natural and moral rights of property remaining unchanged [Emphasis added].5

Far from representing a fundamental break from “normal” property, the U.S. Constitution’s “limited times” language for copyrights remains consonant with how property has been conceived over centuries.

Footnotes

  1. Justin Hughes, Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson79 Southern California Law Review 993, 1004 (2006). []
  2. Why Conservatives and Libertarians Should be Skeptical of Congress’s Copyright Regime, Copyright Unbalanced: From Incentive to Excess, ch. 1 (Mercatus Center 2012). []
  3. Or, more interestingly, if, but for 17 U.S.C. § 301, copyright would be considered property in a state but not the federal government. Prior to that section, which went into effect in 1978 and preempts any state laws that provide protections equivalent to those under the U.S. Copyright Act, a dual system of federal and state copyright existed. Goldstein v. California, 412 US 546, 560 (1973). []
  4. Book 2, Chapter 1. []
  5. Discourses and addresses on subjects of American history, arts, and literature, pg. 221 (1833). []

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Your Bull has Gored my Ox, The Corsair, NY, June 8, 1839.

… But has an author any actual indefeasible property in his works?

“Certainly not! it is merely a temporary usufruct which the law allows him!”

Such will be the answer of ninety-nine men out of a hundred to whom you put the question. They would have answered so fifty years ago. They will answer the same way fifty years hence, unless they are addressed upon the subject in the only mode to make them think upon it. The rights of authors, as now acknowledged, stand separate and apart from those of other men; and the community never will care a copper for their assertion, till compelled by sympathy of interest to think and act upon the subject. The matter of copyright must be taken from the narrow limits in which the mere lawyer would confine it, and placed upon the broad field where the moralist and the statesman will be forced to study it; it must be made to stand where it belongs—upon the basis by which the cause of PROPERTY is upheld in civilized communities! It must be shown, as it can be shown, that every argument against the author’s right of property in his productions, apply equally to the merchant and the land-holder—apply to all who are defended in their possessions by legal enactments made for the good of society. The moralist, who indignantly kindles at the fanatic dreams of Agrarianism, yet turns a cold and indifferent eye upon the author’s interest in property, must be driven to feel the force of His claim by examining the tenure by which the possessions of other members of the community are held. The statesman, who values the artificial substitute of written statutes for the natural law of the strong, must have his eyes opened to the danger of leaving a large class of those for whom he legislates, undefended in their property, save by the powers which nature may have given them.

The law of copyright, as it stands upon our statute-books, is an anomaly in the structure of society as at present constituted. It is a hybrid monster conceived in the spirit of barbarism, and brought into being amid the most cunning wiles of civilized despotism. Its conception refers to the rude times, when a man’s acknowledged possessions consisted only of those things which he actually produced by manual labor; its existence dates from an age when the aristocratic classes hesitated at no means to keep knowledge from the people, and therefore framed laws whose tendency would be to make writers, as a class, dependent upon themselves.

“Political truths are but slow in making themselves known to the world. Those who write in advance of the opinions of men must wait long for the returns, whether of wealth or glory, from their productions. By cutting off” they argued “an author from prospective benefit from his writings at some remote period, we deter the man of slender means from wasting the prime of his life in a pursuit that must be profitless; but we still leave encouragement for the writer who courts the taste and prejudices of the day, and is willing to become tributary to our patronage.”

It were an easy task to show how effective has been this policy in chaining the most vigorous minds of modern times to the footstool of power—to show how often genius has been perverted from its best and noblest ends, by making it dependent upon the patronage of the opulent few—how, robbed of the just and permanent fruits of his industry, the author has been compelled to snatch at such as were within his reach, by ministering to the caprices, or upholding the privileges of the class to whom he was thus driven to look for his bread. But the day is at hand, thank God, when thinking men will be compelled to look into this matter, and weigh well the expediency of perpetuating such monstrous injustice. The author is no longer in the situation of the court-jester or buffoon, who lives upon the bounty of some wealthy patrician. There are readers enough in every class for him to appeal to in the assertion of his rights, and it is for every man who has an interest at stake in the community, to pause and reflect how far it will be well to shut out an influential portion of his fellow citizens from the shelter of the laws protecting property when honestly acquired.

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One of the common historical claims of copyright skeptics is that the Founding Fathers in the US were “suspicious” of copyright and only implemented it with reluctance. The idea could be to argue for sharp reductions in copyright law by appealing to history — as professor Tom Bell said recently in favor of decreasing copyright protections, “If it was good enough for old Ben, Tom, George, etc., it’s good enough for me.” This despite the minimal debate over the Copyright Clause in the Constitution and the subsequent Copyright Act of 1790. The “suspicions” that are often cited do not appear in these debates, nor do they manifest themselves in either of these texts. Instead, the historical record shows a fairly consistent view; when the Founders did discuss copyright, it was seen as both a natural property right of authors that deserved protecting in any enlightened nation.

The heavy lifting for the “suspicious Founding Fathers” argument comes primarily by an exchange of letters between Thomas Jefferson and James Madison discussing the recently drafted Constitution. Jefferson, expressing his thoughts on the document, mentioned briefly its lack of a general prohibition on government granted monopolies. In response, Madison noted toward the end of his letter agreement over the “nuisances” of monopolies, but reminded Jefferson that exceptions should be made for authors and inventors.

While interesting from a historical perspective, these letters shed little light on Jefferson and Madison’s views about the proper scope of copyright (and shed no light on the views of the numerous other Founders). It’s also important to note that Jefferson was apparently in the minority when it came to monopolies; the Bill of Rights as adopted did not include any prohibition on them.

I recently came across a letter by James Madison and sent to Lafayette about Thomas Jefferson,  written several months after Jefferson had died. What’s interesting is how it suggests a different story then the one in the revised history of copyright skeptics.

The Marquis de Lafayette played a pivotal role in the American Revolution and its early years. Madison, Jefferson, and Lafayette knew each other since the earliest days of the US. They not only shared a passion for the republican ideals that fueled the revolutions in the US and France, they also shared a lifelong friendship.

Thomas Jefferson passed away on July 4, 1826, leaving an estate that was deeply in debt. Later that year, Madison wrote Lafayette. After recognizing their mutual sadness at the loss of Jefferson, Madison notes the tremendous financial strain Jefferson’s heirs were facing. He describes a lottery held by the government, which helped ease some but not all of the strain. But Madison shares with Lafayette another cause for hope (emphasis added):

The urgency of particular demands has induced the Executor Thomas Jefferson Randolph, who is the Legatee of the Manuscripts, to undertake an immediate publication of a Memoir, partly biographical, partly political and miscellaneous, left in the handwriting of his Grandfather, the proceeds of which he hopes will be of critical use; and if prompt & extensive opportunities be given for subscriptions, there may be no disappointment. The work will recommend itself not only by personal details interwoven into it, but by Debates in Congress on the question of Independence, and other very important subjects coeval with its Declaration, as the Debates were taken down and preserved by the illustrious member. The memoir will contain also very interesting views of the origin of the French Revolution, and its progress & phenomena, during his Diplomatic residence at Paris, with reflections on its tendencies & consequences. A trial will probably be made to secure the copyright of the publication, both in England and in France. In the latter case your friendly counsel will of course be resorted to and I mention it that you may in the mean time be turning the subject in your thoughts. The manuscripts of which the Memoir makes a part are great in extent, and doubtless rich in matter; and discreet extracts may perhaps prove a further pecuniary resource, from time to time, but how soon and in what degree, I have not the means of judging. Mrs. Randolph with her two youngest children, left Montpellier some days ago, on her way to pass the winter with Mrs. Coolidge. Such a change of scene had become essential to her health as well as to her feelings. She has made up her mind for the worst results; a merit which quickens the sympathy otherwise so intense. She was accompanied by her son, Ths. J. Randolph who will endeavor to make arrangements with the Northern Printers for the volume to be published. It will be an Octavo of about three hundred pages.

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January 28, 2013 · · Comments Off

Below is, in full, a letter from author, politician, and diplomat Joel Barlow, deeply involved during the Founding period of the United States. The letter, written in 1783 to the Continental Congress, which preceded the current federal government operating under the Constitution, called for a copyright law in the United States to protect and encourage authors.

The first US Copyright Act is primarily the result of lobbying from individual authors. Both Barlow and Noah Webster (responsible for the dictionary bearing his name today) deserve the most credit for the introduction of these protections. Barlow’s letter resulted in a resolution by the Continental Congress recommending to the States the passage of copyright laws. Most of the original States followed the Congress’s recommendation and passed their own laws protecting copyright (Only Delaware failed to pass legislation; Connecticut had actually passed a copyright bill shortly before the recommendation). When delegates met to draft the new Constitution in 1787, concerns for national uniformity to protect literary property spurred the drafting of the Copyright Clause, and the first US Copyright Act was enacted in 1790.

Barlow begins his letter laying out the arguments favoring the protection of authors and creators. He justifies copyright as a natural right, drawing on a Lockean theory of property. At the same time, he notes that protecting creators encourages them to contribute to the “national character”, an encouragement that should lie at the heart of any civilized nation. He finally notes several examples of American authors who have found their work reprinted without permission, suffering both financially and in reputation.

The influence of Barlow’s letter on the development of US copyright law is apparent. The Continental Congress and several of the States which subsequently enacted copyright laws repeated Barlow’s assertion that “There is certainly no kind of property, in the nature of things, so much his own, as the works which a person originates from his own creative imagination.” And the First Congress seems to have been convinced with Barlow’s recommendation of looking to England’s 1710 Statute of Anne for inspiration; the Copyright Act of 1790 closely resembles that law.

The following transcription of the letter comes from Primary Sources on Copyright, originally scanned from the National Archives.


Sir,

After having been honored by a slight acquaintance with your Excellency in your private capacity, & receiving marks of attention which I bear in mind with gratitude, I take the liberty of addressing you on a subject in which I conceive the interest & honor of the Public is very much concerned. I mean the embarrassment which bears upon the interests of literature & works of genius in the United States. This embarrassment is natural to every free Government; it is one of the evils of society, which requires to be removed by positive statutes securing the copy-rights of Authors, & in that way protecting a species of property which is otherwise open to every invader. It is a subject which, during the more important affairs of the present revolution, we could not expect to see attended to by any of the Legislatures, but is now much thought of by many individuals, & perhaps can not be too early proposed to the attention of Congress & the several States.

It would be needless to recall to your Excellency’s mind, the encouragement that has been universally given in other countries to the exertions of genius, in every way which might serve to elevate the sentiments & dignify the manners of a nation. The Historian, The Philosopher, the Poet & the Orator have not only been considered among the first ornaments of the age & country which produced them; but have been secured in the profits arising from their labor, and in that way received encouragement in some proportion to their merit in advancing the happiness of mankind.

There is certainly no kind of property, in the nature of things, so much his own, as the works which a person originates from his own creative imagination: And when he has spent great part of his life in study, wasted his time, his fortune & perhaps his health in improving his knowledge & correcting his taste, it is a principle of natural justice that he should be entitled to the profits arising from the sale of his works as a compensation for his labor in producing them, & his risque of reputation in offering them to the Public. From these considerations it is, that most of the civilized nations have removed the natural obstructions which lie in the way of literary emulation, & given the consequent encouragement to every species of laudable ambition.

America has convinced the world of her importance in a political & military line by the wisdom, energy & ardor for liberty which distinguish the present era. A literary reputation is necessary in order to complete her national character; and she ought to encourage that variety & independence of genius, in which she is not excelled by any nation in Europe. 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. In England, your Excellency is sensible that the copy-right of any book or pamphlet is holden by the Author & his assigns for the term of fourteen years from the time of its publication; &, if he is then alive, for fourteen years longer. If the passing of statutes similar to this were recommended by Congress to the several States, the measure would be undoubtedly adopted, & the consequences would be extensively happy upon the spirit of the nation, by giving a laudable direction to that enterprising ardor of genius which is natural to our stage of society, & for which the Americans are remarkable. Indeed we are not to expect to see any works of considerable magnitude, (which must always be works of time & labor), offered to the Public till such security be given. There is now a Gentleman in Massachusetts who has written an Epic Poem, entitled “The Conquest of Canaan”,* a work of great merit, & will certainly be an honor to his country. It has lain by him, finished, these six years, without seeing the light; because the Author cannot risque the expences of the publication, sensible that some ungenerous Printer will immediately sieze upon his labors, by making a mean & cheap improvision, in order to undersell the Author & defraud him of his property.

This is already the case with the Author of McFingal.** This work is now reprinted in an incorrect, cheap edition; by which means the Author’s own impression lies upon his hands & he not only loses the labor of writing, & the expence of publishing, but suffers in his reputation by having his work appear under the disadvantages of typographical errors, a bad paper, a mean letter & an uncouth page, all which were necessary to the printer in order to catch the Vulgar by a low price. The same Gentleman has by him a number of original Poems, of equal merit with those he has already given to the Public; which cannot be brought forward, for the above reasons.

These two instances may convince us that we have arrived at that stage of improvement in America which requires the attention of the Legislatures to this subject; & I have reason to hope, from the opinion of some Gentlemen of Congress, & others with whom I have conversed upon it, that we shall shortly see it in Effect, if your Excellency should think it a matter worthy of your attention. The importance of the subject, & your well-known attachment to the sciences are my only apology for troubling you with so long a letter.

I have the honor to be, Sir, your Excellency’s most obliged & very humble Servant,

Joel Barlow

_____________

*) Rev. Timothy Dwight (1752-1817) was the author of The Conquest of
Canaan
, a biblical allegory of the taking of Connecticut from the British. It was not to be published until 1785.

**) McFingal, a mock epic poem by John Trumbull (1750-1831), had
originally been published in full in 1782.

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January 10, 2013 · · Comments Off

Nowadays author’s rights are among the universally recognized human rights.

One would be forgiven for thinking the above quote was made recently and not, as it actually was, 160 years ago. Recent months have brought increased attention to copyright law and its reform. What’s most troubling about some of these calls for reform have been their mischaracterization of the nature of copyright — as, say, government regulation — and grossly inaccurate historical claims concerning the origins and development of the law. Because many of these recent articles come from the US, the focus has been on the copyright law of the US. But the development of copyright laws in countries outside the US should not be neglected.

But one example of this comes from mid-nineteenth century Europe. The author of the above quote, Johann Kaspar Bluntschli (1808—1881), was an influential Swiss jurist.1 His 1853 work, Deutsches Privatrecht, catalogs the private law of Germany at the time. The sixth chapter is devoted to the law of author’s rights, roughly equivalent to copyright law. At the time, laws governing author’s rights in Germany were roughly only a decade old.

According to Primary Sources on Copyright, “Bluntschli’s approach to author’s rights is regarded as one of the main sources of the personalistic view on intellectual property which developed within the German tradition.” The full text of the chapter along with an English translation can be found at the Primary Sources site.2 Philosophers such as Kant and Hegel also were indispensable to developing this justification for copyright law, sometimes considered the Continental approach to copyright, distinguishable from the Anglo-American’s Lockean and utilitarian approach.3 However, the two traditions are not as divergent as sometimes made out to be,4 and less so since the globalization of copyright law, a process that began in earnest with the Berne Convention in 1886. For a comprehensive account of copyright that ties together a Lockean and Kantian approach, I strongly recommend Robert Merges 2011 Justifying Intellectual Property (a book I’m currently reading).

The Development of Author Rights

Bluntschli begins his chapter on author’s rights with their history and nature. He divides this history into four stages of development.

In the earliest stage, these rights were conceived as a “privilege… conferred in individual cases.” At this stage, “the need for protection of these rights was felt, but there was no understanding as yet of their nature.”

This privilege evolved into the next stage, that of a “publishing right.” Bluntschli writes, “However, this was a most unsatisfactory approach because it failed to take into account that the authorised publisher and the unauthorised reprinter have a different right only by virtue of their different relationship to the author, and that a monopoly granted to the former without consideration for the author, merely for the sake of the priority of the commercial enterprise, lacks any proper foundation.”

From here, the concept of “intellectual or literary ownership” came about. Bluntschli notes that this point of view has been championed by writers, but finds it unsatisfactory as a legal concept.

For jurisprudence ownership can be nothing else but a property right, that is, the complete possession exerted by individual persons over physical objects. An author’s right to his work is, however, not of this kind, since the work is something altogether quite different from the manuscript and the printed copies of the book. The latter are indeed objects which fall under the ownership of individual persons, but the work as an intellectual product is attached neither to a particular manuscript, nor to a particular book. It can also exist without having been written or printed, namely, as a spoken lecture or a speech. The author’s right is, therefore, not affected in the least if, say, his manuscript has been destroyed and all copies of the printed book have come into the hands of private owners. As an intellectual product his work has an essentially unphysical character. The living word is its truest expression.

Moreover, the author’s right is also different from ownership in the sense that the former always refers back to the author as a specific individual person, from which it can never dissociate itself completely, as long as it exists as such, whereas ownership is not concerned with the individual person of the owner. Finally, the direction, and consequently the content, of an author’s right is different from the direction and content of ownership. The owner wants to have the thing for himself; an author, on the contrary, wants to communicate his work to the public, as long as it can be done in an ordered manner and his authorship can be respected.

And so, we reach the fourth stage. Citing both the philosopher Kant and French jurist Renouard, Bluntschli endorses a conception of the author’s right “not as a property right, but, rather, as a personal right of the author, as the right of the originator.”

The Nature of Author Rights

As noted above, observers generally mark a divide between this Continental “personalty” foundation of copyright and the Anglo-American “property” foundation, and at first glance, Bluntschli’s approach seems to confirm this divide. However, I think these two approaches, especially during the time frame Bluntschli was writing about, have more similarities than differences.

The personal rights approach can be seen as a more robust conception of “property” as developed by British, and later American, jurists during the 17th and 18th centuries. Such jurists were open to a broader definition of property than what we often think of today. For our purposes, this broader definition was explained most notably by James Madison in his 1792 essay, On Property. In it, the “Father of the Constitution” writes that property encompasses two meanings:

In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage.

In the former sense, a man’s land, or merchandize, or money is called his property.

In the latter sense, a man has a property in his opinions and the free communication of them.

He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them.

He has a property very dear to him in the safety and liberty of his person.

He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.

In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.

Law professor Laura Underkuffler writes that this broader conception of property was fully present during the Founding era.5 “The term ‘property’ or ‘propriety’ was widely used in the seventeenth century to include constitutional liberties as well as other matters.” John Locke’s writings on property embraced this wider meaning of property as well. Underkuffler states that this historically broad definition of property

was tied to the notion of human beings as masters of themselves; it involved the maintenance of personal integrity in both a physical and nonphysical sense. It was intimately related to the development of the human personality, to the exercise of independent thought and creative powers. It was universal and reciprocal: it was that to which we, as human beings, “attach a value and have a right, and which leaves everyone else to the like advantage.”

In this sense, one can easily see the similarities to the personalty rights discussed by Bluntschli. Both reflect a deep recognition of personal autonomy and dignity; the differences, at least in the broad strokes, are merely semantic.

Bluntschli next lucidly describes the nature of author’s rights. He first emphasizes that the intellectual product created by the work is not physical but a “revelation and expression of his personal intellect.” There is a “natural relationship” between author and work, and it is by “natural right that this relationship be respected.” This right includes not only the right to prevent the work from initial publication, but also the right to publish and determine “the manner and time of its publication and reproduction.” Thus, writes Bluntschli:

even if the reprinting of a work by a third person, without the authorisation of its author, were not to cause financial loss to the latter and were perhaps even to secure him profits, this would still be a violation of the author’s rights, for no one has the right to make the author speak to the public against his will, that is, to expose a part of his personality, his name, and his author’s honour to the community. This can cause damage to the author’s position and reputation of far greater import than that of a missed royalty.

Compare this to US courts, which have repeatedly recognized copyright’s role in protecting the First Amendment’s “right not to speak.”6

Of particular note is Bluntschli’s discussion of the duration of author’s rights. Recent criticisms of copyright show trouble understanding how the drafters of the US Copyright Clause conceived of author rights as property rights while constitutionally limiting their duration. Though Bluntschli is approaching the concept from a slightly different perspective, his discussion of why rights in expressive works do not last forever is both cohesive and illuminating:

Ownership lasts as long as the object which is owned exists. The author’s right, however, does not last as long as the work is in existence. At first consideration for the author’s person is certainly paramount, but with the passing of time the work falls entirely to the community and the author’s right expires.

Now, the principle is generally recognized that the author’s right in any case lasts for as long as as the author is still alive. This means that he stays in control of his communications to the public, insofar as this is still possible. However, modern jurisprudence extends this right to beyond his death and does so for good reason. For if author’s rights were restricted to the author’s lifetime, as personal rights usually are, their duration would be completely uncertain and because of this it would be much harder for the author to secure, by contract with a publisher, the property value to which he is entitled. Moreover, his family would be left out of consideration in the case of the author’s premature death, which is all the more unjust given that the public, whom the latter has done a service by his work, gains in [spiritual] enrichment, whereas the author’s family, which had probably been uppermost in his concerns, would suffer an additional loss. For this reason the author’s person is honoured in his work also beyond his death in the sense that his family (i.e. his successors) are guaranteed the benefit of the author’s rights for a certain period: namely, for as long as the author’s person is still fresh in people’s memory and the author is thereby effectively still alive in the next generation (i.e. that of his successors). It is this idea which underlies the legally specified period of thirty years after an author’s death.

Note that at the time of writing, many countries with copyright laws outside of the US had adopted a “life plus” duration of protection. And in fact, within a century, all countries save for the US and the Philippines (formerly under the control of the US) protected copyright for the life of the author plus a set period of years.7 The US would not adopt a “life plus” term until the Copyright Act of 1976, long after this had become the international norm.

The remainder of the chapter on author’s rights involves a general discussion of the law of author’s rights. Though I won’t go into more discussion about it, it is worth a read — it is both interesting in and of itself and remarkable in how closely the law described by Bluntschli parallels modern copyright doctrines. This provides just one reason why the 19th century jurist’s writings on author rights remain relevant today. Contemporary efforts to reform copyright law are done a disservice when they rely, as they often do, on revisionist history and an impoverished conception of author rights.

Footnotes

  1. See, generally, Herbert Baxter Adams, Bluntschli’s Life-work (Baltimore, 1884). []
  2. Excerpts from the work come from the English translation provided by Bently & Kretschmer (eds), Primary Sources on Copyright (1450-1900) (www.copyrighthistory.org). []
  3. See, for example, Natalie C. Suhl, Moral Rights Protection in the United States Under the Berne Convention: A Fictional Work? 12 Fordham Intellectual Property, Media, and Entertainment Law Journal 1203 (2002). []
  4. Jane C. Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 64 Tulane Law Review 991 (1990). []
  5. On Property: An Essay, 100 Yale Law Journal 127 (1990). []
  6. Salinger v Colting, 607 F.3d 68, 81 (2nd Cir. 2010); see also Harper & Row, Publishers v Nation Enterprises, 471 US 539, 559 (1985). I’ve written previously about recognition of US courts of exactly the type of personal rights that Bluntschli discusses here, see Photos are worth more than the paper they’re printed on. []
  7. Copyright Law Revision Study #30, “Duration of Copyright“, pg 59 (1961). []

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A lot of ink has been spilled over the years over copyright. Many of the arguments against copyright, however, start to sound the same; trotted out again and again no matter how often they are debunked.

Case in point — the following is testimony from Irwin Karp, in his capacity as general counsel of the Authors League of America, during a hearing on copyright law revisions for what would become the Copyright Act of 1976, nearly 40 years ago.

Karp, who passed in 2006, “was a tireless advocate for author’s rights and remembered by many for his work on the 1976 Copyright Revision Act and on the Berne Convention.” Here, he is testifying specifically about “sections 107 and 108 of the Copyright Revision Bill and the issue of ‘library photocopying’”, but his remarks are just as applicable to broader issues. Karp lays out the purposes of copyright law — including its important free speech function — and then moves on to tackle the most popular “anti-copyright” arguments — copyright is a “monopoly”, it restricts access to knowledge, it is merely a government “privilege”. It’s telling that in the past thirty-five years, copyright skeptics have done little to move beyond these arguments.

As the Supreme Court has explained, the Copyright Clause of the Constitution was intended to establish independent, entrepreneurial, self-sustaining authorship and publishing as the means of serving the public interest in securing the production of valuable literary and scientific works. In so doing, the Copyright Clause serves a second purpose — it implements the First Amendment’s freedoms to express and publish ideas, information, opinions and all manner of literary, scientific and artistic works. The First Amendment protects against restraints on these freedoms. But the Copyright Clause is the only constitutional provision which establishes a legal-economic foundation for exercising them. The Copyright Clause thus frees authors from the need for subsidization by the state or other powerful, institutional “patrons”, and from the restraints such support often imposes. And it was intended to sustain the existence of a diversity of independent publishers, who would give a wide range of viewpoints access to the market place of ideas.

The Supreme Court has emphasized that the Copyright Clause of the Constitution

“was intended to grant valuable, enforceable rights to authors, publishers, etc. without burdensome requirements; ‘to afford greater encouragement to the production of literary [or artistic] works of lasting benefit to the world.’”

The Court said that the “economic philosophy” underlying the Copyright Clause

“is the conviction that the encouragement of individual efforts by personal gain is the best way to advance public welfare through the talents of authors . . .” {Mazer v. Stein, 347 U.S. 201, 219)

Thus, the instrument chosen by the Constitution to serve the public interest, i.e., the securing of literary and scientific works of lasting value — is an inde- pendent, entrepreneurial property-rights system of writing and publishing. The Copyright Act establishes the rights which prevent others from depriving authors and publishers of the fruits of their labor. But it does not guarantee a fair reward, or any reward. For authors and publishers, both commercial and non-profit, must depend on income derived from uses of their books and journals to compensate for the talent, labor and money expended in creating them, and provide working capital for further publications. And as entrepreneurs, they must assume the ever-present risk that books and journals produced by substantial labor and cash outlays will fail financially although they make valuable intellectual contributions to the public interest.

We urge that Congress should not disrupt the delicate balance of this essential system. Carving exemptions out of the “enforceable rights” of authors and publishers does not serve the public interest. For although the resulting uncompensated uses may further the convenience or ambitious plans of some “user” group, they diminish or destroy the ability of authors and publishers to serve the ultimate public interest — to continue producing new works of lasting benefit. The publication of scientific and technical journals, for example, richly serves the public interest — but it is at best a marginal economic operation. Learned societies and others who publish them do not grow fat on their profits. Squeezed by ever-increasing costs and static circulations, publishers will be forced to close down some journals or not start new ones if they are denied reasonable compensation for uses of their articles in the new medium of systematic, library one-at-a-time reproduction. Periodicals and journals are neither immortal nor immune from the laws of economics. The process of attrition may not be apparent to library spokesmen, but it is nonetheless inevitable. Yet, while they are willing to make substantial payments to the Xerox Corporation, suppliers and library employees to provide users with hundreds of thousands of copies of copyrighted articles, they demand of Congress the privilege of denying the journal’s publishers any compensation. [Ironically, libraries pay the Xerox Corporation a per-page fee — a royalty, if you will — for each page of each article they reproduce].

THE ANTI-COPYRIGHT ARGUMENTS

It has become ritual for library organization and Ad Hoc Committee spokesmen to accompany their demands for new exemptions with a series of attacks on copyright, calculated to suggest that the author has no legitimate claim to reasonable protection for the work he creates.

THE “ANTITRUST ARGUMENT”

Library and Ad Hoc Committee spokesmen charge that a copyright is a “monopoly”, suggesting it offends the Sherman Act. This is not so. The copyright in a book is not a “monopoly” in the antitrust sense. It does not give the author control over the market in books, or the business of publishing them. His book must compete in the market place with the 40,000 other titles published that year and the hundreds of thousands still in print from prior years, including many that deal with the same subject. His copyright only gives him certain rights to use the book he created. The owner of a copyright only has a “monopoly” in the innocuous sense that all property owners do — each owns a collection of rights, granted by law, to use that which he has created, purchased or inherited.

THE “RESTRAINT OF INFORMATION” ARGUMENT

Library and Ad Hoc Committee spokesmen charge that a copyright places a restraint on information. This is not so. A patent prevents others from using the ideas it protects. A copyright does not impose such restraints. Anyone is free to use the ideas, facts or information presented in a copyrighted book or article. The copyright only protects the author’s expression, not the ideas, facts or information. Other writers can draw on them. Other writers are free to independently create similar (indeed closely similar) works; the copyright only prevents substantial copying of the author’s expression.

In Progress and Poverty, Henry George made this trenchant observation about copyright :

“Copyright . . . does not prevent any one from using for himself the facts, the knowledge, the laws or combinations for a similar production, but only from using the identical form of the particular book or other production — the actual labor which has in short been expended in producing it. It rests therefore upon the natural, moral right of each one to enjoy the products of his own exertion, and involves no interference with the similar right of any one else to do likewise . . .”

The Copyright is therefore in accordance with the moral law — (p. 411)

THE “MERE PRIVILEGE” ARGUMENT

To Library and Ad Hoc Committee spokesmen, it smacks of immorality to suggest that the author has a moral claim to copyright protection in a work that he created, that would not have existed but for his talent, labor and creative efforts. They charge that copyright is not “property” because the rights are created by statute, and that Congress is not required to pass copyright laws since Art. I, Sec. 8 “merely” says that it “shall have the power” to do so. But the phrase “Congress shall have the power” does not precede the copyright clause of Sec. 8 — it prefaces the enumeration of all powers granted to Congress, including the powers to collect taxes, borrow money, raise armies and regulate commerce. Obviously Sec. 8 intended that Congress would enact copyright laws as well as exercise these other vital functions.

Of course a copyright is property. Like all other property, it is “a creature and creation of law . . .” (73 C.J.S. Sec. 1, p. 145). Like all property, it is a bundle of rights granted by the state, through legislation or court decision Copyright is hardly the only form of property created by statute. Property rights in billions of dollars worth of land, minerals and other natural resources have been created by acts of Congress.

But there is one basic distinction. These other statutes grant individuals perpetual, exclusive rights in resources that belonged to the Nation; they take property from the public domain and give it to private citizens. The Copyright Act grants the author rights in something he created and that already belonged to him at common law; and within a short time, the Act takes his creation from him or his heirs and places it in the public domain. Henry George was right in saying the author’s claim to adequate copyright protection rests on “natural, moral right”. The common law recognized that right, holding that an author “has an absolute property right in his production which he could not be deprived of so long as it remained unpublished, nor could he be compelled to publish it.” (Ferris v. Frohman). And as the Register noted, these exclusive common law rights “continue with no limit even though the work is used commercially and widely disseminated.”

Library and Ad Hoc Committee spokesmen have not asked Congress to grant them an exemption from the property rights of the Xerox Corporation which would permit them to use its machines without charge to reproduce “single copies” of journal articles or other copyrighted works. Property rights in machinery is something that apparently wins their respect. But the copyright owner’s right to compensation for systematic library reproduction stands on equally firm moral and legal footing. And his contribution to the libraries’ copying operations is indispensable. Unless the American Chemical Society and other publishers can afford to continue producing their journals, the Xerox machines and libraries will not have articles to reproduce.

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

On its face, the Copyright Act provides that copyright owners actually have two separate sets of rights. Section 106 of the Act gives copyright owners the exclusive rights “to do” and “to authorize” certain listed activities with their copyrighted works, including creating reproductions, making adaptations, distributing copies to the public, publicly performing them, and publicly displaying them.1 It’s clear enough what it means “to do” any of those listed activities, but what does it mean “to authorize” them? Moreover, does merely authorizing someone else to infringe lead to liability even if that party doesn’t actually infringe?

Section 501 of the Act provides that “[a]nyone who violates any of the exclusive rights of the copyright owner” is an infringer.2 It matters not whether they violated the exclusive right “to do” or “to authorize” the listed activity. Either way it’s infringement and they’re an infringer, subject to the full range of remedies under the Act. Nonetheless, as the Supreme Court has noted, distinguishing between different types of infringement is not always easy since “the lines between direct infringement, contributory infringement, and vicarious liability are not clearly drawn.”3

Under the 1909 Copyright Act, courts “came to mixed conclusions about how much involvement in infringing was necessary to subject a defendant to liability for an infringement.”4 The doctrinal disarray was not helped by the fact that the previous Act “did not specifically state that the copyright holder had the exclusive right to authorize use” of the copyrighted work.5 But that all changed with the addition of the right “to authorize” in the 1976 Copyright Act, which “was intended to remove the confusion surrounding contributory and vicarious infringement.”6

But can merely authorizing a listed activity itself be infringement without more? In other words, can one who authorizes an infringement be liable even if that authorized infringement never occurs? That depends on whether the exclusive right “to authorize” is seen as an independent right that stands on its own. The relevant House Report has surprisingly little to say about the newly-minted right “to authorize,” though it does suggest that the right doesn’t stand alone:

The exclusive rights accorded to a copyright owner under section 106 are ‘to do and to authorize‘ any of the activities specified in the five numbered clauses. Use of the phrase ‘to authorize’ is intended to avoid any questions as to the liability of contributory infringers. For example, a person who lawfully acquires an authorized copy of a motion picture would be an infringer if he or she engages in the business of renting it to others for purposes of unauthorized public performance.7

The reason it matters is because direct infringers are always liable to the copyright owner, while indirect infringers are only liable if the authorized infringement actually occurs.8 Thus, if the exclusive right “to authorize” is in fact merely a codification of existing secondary liability doctrines, then one who authorizes an infringement has no liability unless the party authorized actually infringes. On the other hand, if the exclusive right “to authorize” stands alone, then mere authorization of an infringement is itself infringement—even if the party authorized doesn’t actually infringe.

In his influential copyright treatise, Nimmer posits that a “far more perplexing question is whether direct infringement must even exist in order for third-party liability to arise.”9 He thinks that reading the Act to create liability for mere authorization without actual infringement is “overly facile,” and that “to authorize” should be seen as “simply a convenient peg on which Congress chose to hang the antecedent jurisprudence of third-party liability.”10 He concludes that “the rule should generally prevail that third party liability, as its name implies, may exist only when direct liability, i.e., infringement, is present.”11

A few district courts have disagreed with Nimmer and found that the right “to authorize” stands alone. For example, one district court stated that “Congress created a new form of ‘direct’ infringement” when the Act was amended to add the right “to authorize.”12 Another district court stated that “tying the authorization right solely to a claim of justiciable contributory infringement appears contrary both to well-reasoned precedent, statutory text, and legislative history.”13 That court held that merely authorizing infringing acts could itself constitute direct infringement.

A different district court followed suit and stated that Section 106 should be read literally to create an independent, exclusive right “to authorize” use of a copyrighted work.14 That court held that “mere authorization . . . constitutes direct infringement and is actionable under United States Copyright Law.”15 And in yet another district court, it was held that infringement commences at the moment that authorization occurs, because “the right ‘to authorize’ infringing acts” was itself “a right newly recognized by Congress.”16 But these four district courts represent the minority view, and no appellate court that I could find has ever agreed.

In fact, the appellate courts that have addressed the issue have instead agreed with Nimmer, as have the district courts that have cited them. In a leading case, the Ninth Circuit stated that “the addition of the words ‘to authorize’ in the 1976 Act appears best understood as merely clarifying that the Act contemplates liability for contributory infringement . . . .”17 The court of appeals quoted Nimmer for the proposition that Congress was merely codifying the preexisting “jurisprudence of third party liability.”18 Accordingly, the appellate court found that the authorization right is only implicated in cases of contributory infringement, i.e., where there is also direct infringement.

The First Circuit took a similar tack while addressing the issue of whether authorization is infringement “where there is no adequate proof that the third party ever undertook an infringing act.”19 The court of appeals noted that “most (perhaps all) courts that have considered the question have taken the view that a listed infringing act (beyond authorization) is required for a claim.”20 While acknowledging that “the better bare-language reading would allow” a claim for mere authorization, the appellate court nonetheless held that there must be proof “of an infringing act after the authorization.”21

The district court in the famous Jammie Thomas-Rasset case considered whether merely “making available” song files in a peer-to-peer share folder violated plaintiffs’ exclusive right “to authorize” distributions. (This was in addition to its consideration of whether Thomas-Rasset violated plaintiffs’ exclusive right “to do” distributions, as I wrote about previously.) After surveying the statutory text, case law, and legislative history, the district court concluded that “the authorization clause merely provides a statutory foundation for secondary liability, not a means of expanding the scope of direct infringement liability.”22 Moreover, said the district court, “the authorization right . . . only applies if there is an actual dissemination.”23

Bringing us back to the Copyright Act, it’s safe to say that while the plain wording of Section 106 appears to create an independent, exclusive right “to authorize” the listed activities, the majority view is that the right “to authorize” doesn’t stand alone and that one who authorizes an infringement is only liable if the authorized infringement actually takes place.

Follow me on Twitter: @devlinhartline

Footnotes

  1. 17 U.S.C.A. § 106 (West 2012) (“the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.”). []
  2. 17 U.S.C.A. § 501 (West 2012). []
  3. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 435, n.17 (1984) (internal quotations omitted). []
  4. Peter Starr Prod. Co. v. Twin Cont’l Films, Inc., 783 F.2d 1440, 1443 (9th Cir. 1986). []
  5. Id. (emphasis in original). []
  6. Id. []
  7. H.R. REP. 94-1476, 61. []
  8. See, e.g., 1 Goldstein, Copyright: Principles, Law and Practice § 6.1, at 705 (1989) (“It is definitional that, for a defendant to be held contributorily . . . liable, a direct infringement must have occurred.”). []
  9. 3-12 Nimmer on Copyright § 12.04[D][1]. []
  10. Id. []
  11. Id. []
  12. ITSI T.V. Productions, Inc. v. California Auth. of Racing Fairs, 785 F.Supp. 854, 860 (E.D. Cal. 1992). []
  13. Curb v. MCA Records, Inc., 898 F. Supp. 586, 594 (M.D. Tenn. 1995). []
  14. Expediters Int’l of Washington, Inc. v. Direct Line Cargo Mgmt. Services, Inc., 995 F. Supp. 468, 476 (D.N.J. 1998). []
  15. Id. at 477. []
  16. Thomas v. Pansy Ellen Products, Inc., 672 F. Supp. 237, 241 (W.D.N.C. 1987). []
  17. Subafilms, Ltd. v. MGM-Pathe Communications Co., 24 F.3d 1088, 1093 (9th Cir. 1994). []
  18. Id. (internal quotations and brackets omitted). []
  19. Venegas-Hernandez v. ACEMLA, 424 F.3d 50, 57 (1st Cir. 2005). []
  20. Id. at 57. []
  21. Id. at 59. []
  22. Capitol Records, Inc. v. Thomas, 579 F.Supp.2d 1210, 1221 (D. Minn. 2008). []
  23. Id. at 1223. []

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