Doesn’t ALL property last for a limited time?

By , March 18, 2013.

Despite the “robust history” of treating copyright as property, 1Justin Hughes, Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 Southern California Law Review 993, 1004 (2006). “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.” 2Why Conservatives and Libertarians Should be Skeptical of Congress’s Copyright Regime, Copyright Unbalanced: From Incentive to Excess, ch. 1 (Mercatus Center 2012). 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. 3Or, 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).

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. 4Book 2, Chapter 1.

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]. 5Discourses and addresses on subjects of American history, arts, and literature, pg. 221 (1833).

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.

References

References
↑1 Justin Hughes, Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 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).

“Chaining the most vigorous minds of modern times to the footstool of power”

By , March 04, 2013.

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.

James Madison on copyrighting Thomas Jefferson’s memoirs

By , January 30, 2013.

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.

Letter from Joel Barlow to the Continental Congress (1783)

By , January 28, 2013.

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.

Bluntschli: On Authors’ Rights, Munich (1853)

By , January 10, 2013.

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. 1See, generally, Herbert Baxter Adams, Bluntschli’s Life-work (Baltimore, 1884). 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. 2Excerpts from the work come from the English translation provided by Bently & Kretschmer (eds), Primary Sources on Copyright (1450-1900) (www.copyrighthistory.org). 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. 3See, 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). However, the two traditions are not as divergent as sometimes made out to be, 4Jane C. Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 64 Tulane Law Review 991 (1990). 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. 5On Property: An Essay, 100 Yale Law Journal 127 (1990). “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.” 6Salinger 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.

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. 7Copyright Law Revision Study #30, “Duration of Copyright“, pg 59 (1961). 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.

References

References
↑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).

The Purposes of Copyright Law and “Anti-Copyright” Arguments

By , November 19, 2012.

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.

“To Do” vs. “To Authorize”

By , November 06, 2012.

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. 117 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.”). 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. 217 U.S.C.A. § 501 (West 2012). 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.” 3Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 435, n.17 (1984) (internal quotations omitted).

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.” 4Peter Starr Prod. Co. v. Twin Cont’l Films, Inc., 783 F.2d 1440, 1443 (9th Cir. 1986). 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. 5Id. (emphasis in original). 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.” 6Id.

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. 7H.R. REP. 94-1476, 61.

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. 8See, 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.”). 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.” 93-12 Nimmer on Copyright § 12.04[D][1]. 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.” 10Id. 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.” 11Id.

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.” 12ITSI T.V. Productions, Inc. v. California Auth. of Racing Fairs, 785 F.Supp. 854, 860 (E.D. Cal. 1992). 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.” 13Curb v. MCA Records, Inc., 898 F. Supp. 586, 594 (M.D. Tenn. 1995). 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. 14Expediters Int’l of Washington, Inc. v. Direct Line Cargo Mgmt. Services, Inc., 995 F. Supp. 468, 476 (D.N.J. 1998). That court held that “mere authorization . . . constitutes direct infringement and is actionable under United States Copyright Law.” 15Id. at 477. 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.” 16Thomas v. Pansy Ellen Products, Inc., 672 F. Supp. 237, 241 (W.D.N.C. 1987). 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 . . . .” 17Subafilms, Ltd. v. MGM-Pathe Communications Co., 24 F.3d 1088, 1093 (9th Cir. 1994). The court of appeals quoted Nimmer for the proposition that Congress was merely codifying the preexisting “jurisprudence of third party liability.” 18Id. (internal quotations and brackets omitted). 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.” 19Venegas-Hernandez v. ACEMLA, 424 F.3d 50, 57 (1st Cir. 2005). 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.” 20Id. at 57. 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.” 21Id. at 59.

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.” 22Capitol Records, Inc. v. Thomas, 579 F.Supp.2d 1210, 1221 (D. Minn. 2008). Moreover, said the district court, “the authorization right . . . only applies if there is an actual dissemination.” 23Id. at 1223.

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

References

References
↑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.

“Equity will not bear witness to such a travesty of justice”

By , October 17, 2012.

Thomas Edison invented the phonograph in 1877, the first device that was capable of recording and reproducing sound. The device would soon become an important source of musical entertainment. Columbia Records, formed in 1888, for example — now a subsidiary label of Sony Music Entertainment — would boast a catalog 10 pages long of pre-recorded musical records by 1891.

As early as 1888, songwriters and composers would claim, unsuccessfully, that reproducing their songs on mechanical devices like the phonograph was copyright infringement. 1Kennedy v McTammany, 33 F. 584 (D. Mass. 1888). Courts rejected these claims, including the Supreme Court in 1908, but Congress eventually stepped in and recognized mechanical reproduction as one of the exclusive rights of copyright owners in the Copyright Act of 1909.

Recording artists would not be so successful in making the claim that they too were entitled to separate legal protection for their interpretation of musical compositions on recordings. As early as 1906, manufacturers of recorded media would seek copyright protection for their works. 2Copyright Law Revision, Study No. 26: The Unauthorized Duplication of Sound Recordings, Subcommittee on Patents, Trademarks, and Copyrights (1961). Repeated attempts in courts and legislatures would fall short; legal protection against “dubbing” and bootlegging sound recordings would not begin to appear until the late 60s, and only then in the states. By 1970, half of state legislatures prohibited sound recording piracy. 3Capitol Records v Naxos, 830 NE 2d 250 (NY Ct of Appeals, 2005). Federal law eventually recognized copyright protection for sound recordings in 1972, but only for recordings made after that date, and only for reproduction, distribution, and derivative works — a public performance right in sound recordings continues to be denied to this day under US law, contrary to most other nations, 4According to the Future of Music Coalition, “At least 75 nations, including most European Union member states, do have a performance right.” except in the case of digital public performances. 517 USC § 114.

But recording artists would have sporadic successes in courts to protect their works before the arrival of federal copyright protection. One example is Metropolitan Opera Assn v Wagner-Nichols, a 1950 decision from the New York Supreme Court 6Unlike the federal court system, where the Supreme Court is the highest level court, the New York Supreme Court is the lowest, trial level court. granting a preliminary injunction against a company engaged in unauthorized duplication of sound recordings. 7199 Misc. 786. The court relied on the common law tort of unfair competition and equitable principles to reach its decision.

The language of the decision makes it worth a read. It serves as a reminder that, while copyright protection itself is solely a creature of statute, it is firmly rooted in principles of justice, fairness, and equity. After opening with a discussion of the facts of the case, the court writes:

In passing upon the question of the sufficiency of a complaint alleging unfair competition it is helpful to bear in mind the origin and evolution of this branch of law. It originated in the conscience, justice and equity of common-law judges. It developed within the framework of a society dedicated to freest competition, to deal with business malpractices offensive to the ethics of that society. The theoretic basis is obscure, but the birth and growth of this branch of law is clear. It is an outstanding example of the law’s capacity for growth in response to the ethical as well as the economic needs of society. As a result of this background the legal concept of unfair competition has evolved as a broad and flexible doctrine with a capacity for further growth to meet changing conditions.

Defendants had argued that unfair competition was limited to “palming off” someone else’s work as their own. Thus, since defendants weren’t claiming the recordings as their own, there was no unfair competition. The court discarded this argument, as well as the argument that defendants weren’t in direct competition with the Opera.

The modern view as to the law of unfair competition does not rest solely on the ground of direct competitive injury, but on the broader principle that property rights of commercial value are to be and will be protected from any form of unfair invasion or infringement and from any form of commercial immorality, and a court of equity will penetrate and restrain every guise resorted to by the wrong-doer.

The court next considers the public’s interest in applying the doctrine of unfair competition to this case, in a discussion that parallels discussions about the goals and purposes of copyright law.

The production of an opera by an opera company of great skill, involving, as it does, the engaging and development of singers, orchestra, the training of a large chorus and the blending of the whole by expert direction into a finished interpretative production would appear to involve such a creative element as the law will recognize and protect against appropriation by others.

***

The fostering and encouragement of fine performances of grand opera, and their preservation and dissemination to wide audiences by radio and recordings are in the public interest. The Metropolitan Opera, over a period of sixty years, has developed one of the finest, if not the finest, opera companies available to Americans. Through the media of recordings and broadcasts, an avenue of culture has been opened to vast numbers of Americans who have been able to enjoy the fruits of this great enterprise. To many, it is the only available source of grand opera. To refuse to the groups who expend time, effort, money and great skill in producing these artistic performances the protection of giving them a “property right” in the resulting artistic creation would be contrary to existing law, inequitable, and repugnant to the public interest. To hold that the broadcasts of these performances, making them available to a wider audience of Americans, deprives the Metropolitan Opera of all of its rights in this production and abandons the production to anyone to appropriate and exploit commercially, would indeed discourage the broadcasting of such operas and penalize not only the Metropolitan Opera but the public which now benefits from these broadcasts. Equity will not bear witness to such a travesty of justice; it will not countenance a state of moral and intellectual impotency. Equity will consider the interests of all parties coming within the arena of the dispute and admeasure the conflict in the scales of conscience and on the premise of honest commercial intercourse.

The court ultimately grants the injunction. It ends by noting:

The conclusion here reached is not an onslaught on the currents of competition; it does not impose shackles on the arteries of enterprise. It simply quarantines business conduct which is abhorrent to good conscience and the most elementary principles of law and equity.

 

References

References
↑1 Kennedy v McTammany, 33 F. 584 (D. Mass. 1888).
↑2 Copyright Law Revision, Study No. 26: The Unauthorized Duplication of Sound Recordings, Subcommittee on Patents, Trademarks, and Copyrights (1961).
↑3 Capitol Records v Naxos, 830 NE 2d 250 (NY Ct of Appeals, 2005).
↑4 According to the Future of Music Coalition, “At least 75 nations, including most European Union member states, do have a performance right.”
↑5 17 USC § 114.
↑6 Unlike the federal court system, where the Supreme Court is the highest level court, the New York Supreme Court is the lowest, trial level court.
↑7 199 Misc. 786.

Remarks on Literary Property (1838)

By , October 01, 2012.

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

How times have changed!

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

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

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

225 Years of Copyright in the US

By , September 05, 2012.

On September 5, 1787, New Jersey Delegate David Brearly submitted the final language of the Copyright Clause to the members of the US Constitutional Convention. Granting the new federal Congress the authority to issue copyrights had been proposed several weeks earlier by James Madison (and, separately, by Charles Pinckney).

The full language, which also gives Congress power to issue patents, reads, “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 US Constitution would not be finalized until September 17th, it would not be ratified for another year, and the first Copyright Act would not be signed into law until May 31, 1790. But it seems appropriate to mark this date as an important one in US copyright history.

The existence of copyright law in the United States is mainly the result of efforts by authors.

The Statute of Anne, Britain’s 1710 law establishing copyright in that country, did not apply in its American colonies. The colonies before independence did not have anything resembling a “publishing industry.” Attitudes toward printing in the 17th century were inherited from England; Legal professor Oren Bracha notes that, “In short, throughout the colonial period … the press was seen as an important but dangerous public resource to be encouraged and used by the government, but also to be restricted and regulated.” 1Oren Bracha, Commentary on John Usher’s Printing Privilege 1672, in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer (2008). Any book trade was small and unorganized, with only a handful of printers and presses in the colonies at the time. This reflected the less-industrially developed character of the colonies at this time.

Legal mechanisms were scarcely needed because printers faced little risk from reprinting. Printers faced little competition due to their scarcity and the lack of any ability to serve more than their local market. The existence of reprinting was further minimized by extra-legal mechanisms, described by Bracha as “private contractual agreements among booksellers not to print each other’s copies” and “an informal social norm within the trade against such behavior.” There were a few exclusive printing patents granted during this time, primarily for the exclusive right of printing compilations of a colony’s laws.

It was authors who primarily lobbied for general copyright laws in the colonies, and, eventually, the federal government. These authors include Joel Barlow, American politician and writer of Vision of Columbus and Hasty Pudding. Barlow played in important role in convincing the Continental Congress to pass its 1783 resolution encouraging the States to enact copyright legislation.

They also include Noah Webster, who would eventually write the dictionary that still bears his name today. Webster took it upon himself to lobby the individual state legislations, in person, to act on the Continental Congress’s resolution. (He would later play a role in the first major revision of the US Copyright Act in 1831). 2Oren Bracha, ‘Commentary on the U.S. Copyright Act 1831‘, in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer (2008).

Other authors who played a role include Jeremy Belknap, writer of the first modern history in America, the History of New Hampshire, and Thomas Paine, whose pamphlets proved indispensible to the American Revolution. 3William Patry, ‘The Colonies and Copyright’, in Copyright Law and Practice (2000).

But often overlooked is the part played by a lesser-known author — and a musician, to boot — in efforts to create American copyright law.

William Billings

The author is William Billings, the “father of American choral music.” Billings was born in Boston in 1746. He worked as a tanner but taught himself music, never receiving any formal training, and according to biographical reports, seemed to have been quite the character:

Billings was a mixture of ludicrous, eccentric, commonplace, smart, active, patriotic and religious elements, with a slight touch of musical and poetical talent. To this side of the tanner-composer’s moral nature his personal appearance and habit formed a harmonious sequel. He was somewhat deformed, blind of one eye, one leg shorter than the other, one arm somewhat withered; and he was given to the habit of continually taking snuff. He carried this precious article in his coat-pocket made of leather, and every few minutes would take a pinch, holding the snuff between the thumb and clinched hand. To this picture we must add his stentorian voice, made, no doubt, rough as a saw by the effects of the quantity of snuff that was continually rasping his throat. 4Frédéric Louis Ritter, Music in America, pg. 60 (Charles Scribner’s Sons 1884).

Critically panned 5Ritter, Id., says, “Nevertheless, Bill Billings remained an awkward harmonist and a worse contrapuntist … not to speak of hideous consecutive fifths and illogical progressions of octaves, motivi, without any inner aesthetic connection, chase each other, without rhyme and reason, from one end of the scale to the other; chords and harmonies tumble upon each other without order and euphony, playing carnival in the hearer’s ears.” but popular, Billing’s works seem to capture the quintessence of American spirit. Though “crude, unrefined, and even vulgar”, and “scarred with glaring imperfections”, they contained a “buoyancy of rhythm, originality, life and melodic fluency.” 6A Hundred Years of Music in America, ed. W.S.B. Mathews, pp 25-29 (Theodore Presser, 1900). His “lively and spirited” psalms were a welcome change from the old “slow isochronous” hymns, which aided in their wide acceptance. 7Musical Reporter, no. 1 vol. 7 (1841).

Not everyone welcomed Billings’ new style of music, however. Indeed, some accounts seem reminiscent of more modern day accounts of new trends in music:

These old bigots must have been paralyzed at the new style of psalm-singing which was invented and introduced by a Massachusetts tanner and singingmaster named Billings, and which was suggested, doubtless, by the English anthems. It spread through the choirs of colonial villages and towns like wild-fire, and was called “fuguing.” …

All public worshippers in the meetings one hundred years ago did not, however, regard fuguing as “something sweet everywhere,” nor did they agree with Billings and Byles as to its angelic and ecstatic properties. Some thought it ” heartless, tasteless, trivial, and irreverent jargon.” Others thought the tunes were written more for the absurd inflation of the singers than for the glory of God; and many fully sympathized with the man who hung two cats over Billings’s door to indicate his opinion of Billings’s caterwauling. An old inhabitant of Roxbury remembered that when fuguing tunes were introduced into his church “they produced a literally fuguing effect on the older people, who went out of the church as soon as the first verse was sung.” 8Alice Morse Earle, The Sabbath in Puritan New England, pp 218-221 (Charles Scribner’s Sons 1891).

Billings’ popularity grew as he turned to patriotism during the Revolutionary War. He penned the tune, “Chester“, which became known as the first unofficial National Anthem. The song was said to have been “frequently heard from every fife in the New England ranks” during the war. 9Musical Reporter, Id.

Let tyrants shake their iron rod,

And Slav’ry clank her galling chains,

We fear them not, we trust in God,

New England’s God forever reigns.

Billings’ Copyright Bill

William Billings hoped to have a successful career as a songwriter. In November 1770, Billings petitioned the Massachusetts House of Representatives, “praying that he may have the exclusive Privilege of selling a Book of Church-Musick compos’d by him self, for a certain Term of Years.” Over the next two years, Billings continued his petition until he was able to bring a bill in front of the legislature. Both the Massachusetts House of Representatives and the Council eventually passed the bill.

Bracha notes that this is “This was an important landmark in American copyright history.”

For the first time an author rather than a printer or a bookseller applied to receive exclusive privileges in his own work. Two and a half centuries after printing privileges were granted to authors in Venice, France, Germany and England, an American legislature was willing to bestow rights on an author as such. In Britain the Statute of Anne had formally conferred rights on authors since 1710 and during the eighteenth century authorship had become the dominant ideology of copyright law and discourse, but in America Billings’ petition and Bill constituted the first appearance of the author as a claimer of rights.

Unfortunately, Billings never got his bill. Massachusetts Governor Thomas Hutchinson vetoed it and several other bills without comment. Tensions between the Loyalist Governor and the more radical legislature were already growing, so it is likely that Billings’ bill was simply a victim of politics.

Also unfortunate: Billings never escaped poverty during his life. He was buried in an unmarked grave even though his music remained popular, reprinted freely without compensation throughout the States.

Two hundred twenty five years later

US copyright law has come a long way since Billings’ time. In the 225 years since the Copyright Clause was drafted, the law has expanded to include artistic and creative works beyond books and maps. The entry of the US into the international copyright realm in the nineteenth century allowed American creators to compete on a level playing field with foreign authors. 10“More authors came to public attention with the growth of interest in the novel, many of them Americans after the International Copyright Law of 1891 for the first time made their works no more expensive to issue than those by foreigners. After 1894 more novels, though not always more popular novels, came from Americans than from Europeans.” The popular book: a history of America’s literary taste, James David Hart, pg. 185 (Univ. of Cali. Press 1950). Today, US films, television shows, music, and books are enjoyed across the globe.

As with any legal doctrine, copyright will continue to face challenges in the face of societal and technological advancements. But securing the exclusive rights of authors remains a valuable and viable mechanism for promoting the progress of the arts and sciences.

References

References
↑1 Oren Bracha, Commentary on John Usher’s Printing Privilege 1672, in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer (2008).
↑2 Oren Bracha, ‘Commentary on the U.S. Copyright Act 1831‘, in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer (2008).
↑3 William Patry, ‘The Colonies and Copyright’, in Copyright Law and Practice (2000).
↑4 Frédéric Louis Ritter, Music in America, pg. 60 (Charles Scribner’s Sons 1884).
↑5 Ritter, Id., says, “Nevertheless, Bill Billings remained an awkward harmonist and a worse contrapuntist … not to speak of hideous consecutive fifths and illogical progressions of octaves, motivi, without any inner aesthetic connection, chase each other, without rhyme and reason, from one end of the scale to the other; chords and harmonies tumble upon each other without order and euphony, playing carnival in the hearer’s ears.”
↑6 A Hundred Years of Music in America, ed. W.S.B. Mathews, pp 25-29 (Theodore Presser, 1900).
↑7 Musical Reporter, no. 1 vol. 7 (1841).
↑8 Alice Morse Earle, The Sabbath in Puritan New England, pp 218-221 (Charles Scribner’s Sons 1891).
↑9 Musical Reporter, Id.
↑10 “More authors came to public attention with the growth of interest in the novel, many of them Americans after the International Copyright Law of 1891 for the first time made their works no more expensive to issue than those by foreigners. After 1894 more novels, though not always more popular novels, came from Americans than from Europeans.” The popular book: a history of America’s literary taste, James David Hart, pg. 185 (Univ. of Cali. Press 1950).
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