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

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

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

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

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

Similarly, the Digital Media Association writes:

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

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

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

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

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

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

History of common law protection for unpublished works

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

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

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

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

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

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

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

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

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

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

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

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

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

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

C.I.A.: Copyright In Action

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

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

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

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

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

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

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

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

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

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

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

Absolute and Perpetual Property

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

Absolute and perpetual.

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

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

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

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

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

Copyright Act of 1976

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

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

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

Copyright Office Study on Unpublished Works

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

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

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

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

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

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

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

Always double-check copyright reform claims

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

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

References   [ + ]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.

On Being a Luddite — Another fantastic piece from David Newhoff. “What we preserve of the past implies the question of what we protect from the future. There is nothing inherently anti-progress about this question unless progress must exclusively mean to leap without looking.”

CBS Seeks to Unwind Retrans Agreement with Dish Network — Each of the four major US broadcast networks is currently involved in litigation with Dish Network over its Autohop and Primetime Anytime services. In the latest development, as reported by The Hollywood Reporter, CBS has amended its counterclaims after learning that Dish allegedly failed to disclose details of these services when the two companies were negotiating a new retransmission agreement in 2011.

In the Last Year… — Creative America reviews some of the positive developments in copyright law during 2012.

A middleman in the great internet copyright debate — The Irish Time sits down with Rob Levine, author of the 2011 book Free Ride: How Digital Parasites are Destroying the Culture Business and How the Culture Business can Fight Back, to talk about issues raised in his book and developments in the copyright world since it was published. Levine is speaking in Ireland this week.

Did Glee Steal from Jonathan Coulton? — Alison Keeley of IP Brief provides an excellent roundup of the news and legal issues revolving around this week’s kerfuffle that resulted when musician and internet star Coulton thought a version of Sir Mix-A-Lot’s “Baby Got Back” featured on an upcoming episode of Glee sounded a lot like a version he had released online several years ago.

Commodities, Monopolies, Remixes and Rights – A Symphony — The Cynical Musician picks up on an my earlier post Three Reasons Copyright is Not a Monopoly and embarks on a lengthy but thought-provoking romp that thoroughly puts to rest notions that copyright is synonymous with monopoly.

Finally, this week, Kim Dotcom unveiled Mega, his latest venture, and surprisingly, the strongest criticisms have come not from the copyright community, but from the tech and security community, who have said of the service: “Megabad“, “Surprisingly bad“, “Quite frankly it felt like I had coded this in 2011 while drunk”, “don’t trust it“, “casts serious doubts over their entire operation and the competence of those behind it“, “poorly implemented by people clearly unfamiliar with basic cryptography.”

Photographer Prevails in Twitter Copyright Suit — I’d like to point everyone to Creativity Tech, a new blog devoted to many of the same issues readers of this site would be interested in. In this post, the recent case involving photos posted to Twitter and then copied by AFP and the Washington Post without permission is examined, with a federal judge determining that such copying was infringement.

What I’d tell my own kids about piracy. Why scarcity is a good thing — David Newhoff offers another thoughtful piece on the cultural attitudes of the net generation. “It doesn’t matter that the sale for the producers of the tentpole is zero whether my kid watches it through a torrent or doesn’t see it at all; what matters is making the decision that if it isn’t worth paying for, it probably isn’t worth the equally valuable resources of time and attention. In short, it’s not only okay to let some things go, you don’t really have a choice.”

How to Stop Piracy: Carnegie Mellon Professor Michael Smith at DBW — Filesharing denialists continue to make their case despite all facts to the contrary. As Professor Smith points out, “while 3 studies have been published suggesting that piracy doesn’t hurt sales, 25 others have shown that piracy is bad for sales.” Smith also states that both legitimate online offerings and effective anti-piracy regulations are necessary to ensuring the public continues to benefit from the creative efforts of companies and individuals.

Declan McCullagh responds to last week’s CES panel — As reported here recently, last week’s copyright panel at the CES left much to be desired in terms of balance. McCullagh, who moderated the panel, mentioned as much on stage. The response was that anyone willing to present a different view of copyright had declined invitations to speak, but as it turns out, the CEA, which was in charge of the panel, had dropped the ball in making sure a balanced panel was presented.

The Silver Lining of the SOPA Debate — Some readers might recognize today as the one year anniversary of the SOPA blackout. Sandra Aistars from the Copyright Alliance offers her reflections.

The State of Online Music (2012) — The Next Big Sound presents its report on digital music.

The line between permissible copying and infringement — appropriation and misappropriation — is a difficult one to draw.

In part, this is because the statutes governing copyright offer relatively little guidance on the issue. In the US, 17 USC §106 provides that “the owner of copyright… has the exclusive right[]… to reproduce the copyrighted work in copies…”, while §501 states that “Anyone who violates any of the exclusive rights of the copyright owner… is an infringer of the copyright.” That’s it.

The difficult, and sometimes metaphysical, job of exactly defining reproduction and applying it to specific cases has been left to courts.

At the outset, it’s worth noting two very general points about reproduction. First, the definition is not limited to the copying of an entire work. “The entirety of the copyright is the property of the author; and it is no defence, that another person has appropriated a part, and not the whole, of any property.”

In some cases, a considerable portion of the materials of the original work may be fused, if I may use such an expression, into another work, so as to be undistinguishable in the mass of the latter, which has other professed and obvious objects, and cannot fairly be treated as a piracy; or they may be inserted as a sort of distinct and mosaic work, into the general texture of the second work, and constitute the particular excellence thereof, and then it may be a clear piracy. 1Folsom v Marsh, 9 F.Cas. 342 (D. Mass. 1841).

Second, the definition is not limited to literal copying. Infringement may occur through the copying of non-verbatim expression. This principle was explained most notably by Judge Learned Hand in the 1930 case Nichols v Universal Pictures:

It is of course essential to any protection of literary property, whether at common-law or under the statute, that the right cannot be limited literally to the text, else a plagiarist would escape by immaterial variations. That has never been the law, but, as soon as literal appropriation ceases to be the test, the whole matter is necessarily at large, so that, as was recently well said by a distinguished judge, the decisions cannot help much in a new case. When plays are concerned, the plagiarist may excise a separate scene; or he may appropriate part of the dialogue. Then the question is whether the part so taken is “substantial,” and therefore not a “fair use” of the copyrighted work; it is the same question as arises in the case of any other copyrighted work. But when the plagiarist does not take out a block in situ, but an abstract of the whole, decision is more troublesome. Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his “ideas,” to which, apart from their expression, his property is never extended. 245 F.2d 119, 121 (2nd. Cir.).

Simple in theory, but, as Hand points out, “troublesome” in practice.

Harney v Sony Pictures

A recent First Circuit Court decision touches on these complex issues, with the added challenge of “newsworthy” subject matter. That decision is Harney v Sony Pictures Television, released January 7th, 2013.

Donald Harney is a freelance photographer. In April 2007, Harney snapped a photo of a happy father and daughter, her sitting on his shoulders, emerging from a church service in Boston. The photo would achieve iconic status after the father abducted the daughter in 2008 during a parental custody dispute. Adding to the drama, it was soon learned that the father, Christian Karl Gerhartsreiter, was a serial imposter, passing himself off at various times as a member of the Rockefeller family, a descendant of British royalty, a Wall Street investment advisor, and a rocket scientist. In addition, Gerhartsreiter was wanted for questioning in a twenty year old homicide case in California. 3Gerhartsreiter has since been charged with the murder, and a trial is set for March 11th. A portion of Harney’s photo was used by the FBI to create a wanted poster, which Harney did not object to, and Harney licensed the photo to various media outlets as public interest in the case grew.

In 2010, Sony Pictures released a made-for-television docudrama about the Gerhartsreiter saga. Harney’s photo was “recreated”, using the film’s actors, and appeared at several points during the film. Harney sued Sony Pictures for copyright infringement. Sony moved for summary judgment, arguing that the image in the film was not substantially similar to Harney’s photo, or, in the alternative, that it was a fair use of the photo. In May 2011, the District Court granted Sony’s motion, concluding that Sony’s image copied only the “factual content” and not the “expressive elements” of Harney’s photo (and since the court held there was no infringement, it did not need to address whether there was fair use).

Harney appealed, but the First Circuit affirmed the district court’s decision.

The First Circuit’s decision

The Circuit Court began by noting the elements a plaintiff in a copyright infringement suit must establish: ownership of a valid copyright and illicit copying. However, as the Court stated, not all copying is illicit; the copying must be “sufficiently extensive” to make the two works substantially similar. At the same time, said the court, “it is permissible to mimic the non-copyrightable elements of a copyrighted work” — a principle commonly described as the idea/expression distinction.

So the analysis of illicit copying in cases like this involve two levels of scrutiny: first, the factfinder must separate the “original expressive elements” of a work from its unprotected content, and second, the two works are “compared holistically”, but only as to the protected elements of the original. Each Circuit Court has evolved slightly different approaches to substantial similarity; in the First Circuit, the test is whether “the ordinary observer, unless he set out to detect the disparities [between the two works], would be disposed to overlook them, and regard their aesthetic appeal as the same.”

Finally, the court pointed out the challenges of such an analysis with news photography. Artists have no right to the “reality” of their subject matter, said the First Circuit, but reality is the “news photographer’s stock-in-trade.” While copyright protects the creative choices of such photographers, it does not extend to the subject matter of which a photographer is uninvolved in — the court likens this subject matter to unprotected facts or ideas.

The court then applied these rules to the facts of the case. It first concluded that Harney’s photo consisted largely of factual subject matter, rejecting the photographer’s claim that this dissection of the photo’s protectable elements would result in “throwing out the work’s expressive content with the bathwater of `independently existing facts.'” The court replied that such an approach would not only run against existing precedent, but also “enlarge the scope of his copyright protection by attributing to the [p]hoto an idea” that did not originate with Harney — the idea of Gerhartsreiter’s deception that emerged after the photo was taken. As the court states:

While Harney should benefit from the added interest in his photograph, as he did through the payments from Vanity Fair and other publications, such newfound interest does not change the originality vel non of the individual components of the work. It does not, in other words, change Harney’s creative contributions to the Photo. Moreover, recalibrating a work’s originality based on a new idea of what it expresses would undermine the distinction that remains between ideas and expression in visual works. In short, we do not see how subsequent events can fortuitously transform unoriginal elements of a visual work into protectible subject matter.

(In a footnote, the court points out that “originality in timing” can sometimes be protected by copyright, citing the famous photo of a sailor kissing a nurse in Times Square on VJ day — however, “[t]his case does not involve a unique or unusual moment fortuitously captured by a photographer.”)

In the end, the court held that the “piggyback pose” of the father and daughter, their clothing, the items they held, and the church in the background were all unprotected elements of the photo. That left the framing, tones, and composition of the image as protected expressive elements. After the court struck the pose, the analysis is all but over, since that element dominates both the original photo and Sony’s image. The court found that other than the pose of the father and daughter, there were few similarities between the two photos as far as framing, tones, and composition. Thus, since Sony had only copied the unprotected elements of Harney’s photo, there was no infringement, and the district court’s grant of summary judgment was affirmed by the First Circuit.

The decision does not break too much new legal ground. But it does, no doubt, involve a set of facts that should spark the interest of copyright buffs, and the First Circuit’s opinion is fairly clear and straightforward. (For an opposing view, see the 1709 Blog’s Originality in photographs: follow-up to Harney v Sony decision, with comments by Donald Harney himself.)

References   [ + ]

1. Folsom v Marsh, 9 F.Cas. 342 (D. Mass. 1841).
2. 45 F.2d 119, 121 (2nd. Cir.).
3. Gerhartsreiter has since been charged with the murder, and a trial is set for March 11th.

Paying Attention to the Echo Chamber at CES Copyright Panel Discussion — David Newhoff dissects the incredibly one-sided copyright panel held this past week during CES, paying particular attention to EFF co-founder John Perry Barlow’s remark that “The Pirate Bay is speech.”

Guess who’ll grab Facebook Sponsored Stories payout? (Hint: Not the victims) — Andrew Orlowski looks at the latest example of the current trend of tech companies paying out class-action settlement awards to the organizations that they fund anyway. This time, it’s Facebook, in connection with litigation over its “Sponsored Stories”, and the beneficiaries include the usual suspects, as well as, says Orlowski, “WiredSafety.org (whose founder serves on Facebook’s Cybersafety Advisory Board).”

Youtube Allows Pirate “Partners” to Profit From Illegal Movie Uploads — Since YouTube lifted its 20 minute limit on videos that could be uploaded, it has been easier to find full-length films on the site… and, as Ellen Seidler notes here, easier for people without rights to full-length films to upload and monetize them. Seidler floats the suggestion of some sort of verification process for videos over 20 minutes in length.

RapidShare: Traffic and Piracy Dipped After New Business Model Kicked In — Last year, filelocker RapidShare unveiled a set of changes to reduce copyright infringement through its service, along with an “anti-piracy manifesto” calling on similar services to join it. Fastforward to today and, according to Torrentfreak, the service has experienced both a drop in traffic and infringement. I found the following remark from the article particularly interesting: “The flipside in the short-term is that RapidShare could lose a bit more traffic, at least until it manages it balance the loss of traditional file-sharing traffic with its new image as an antipiracy-motivated Dropbox-style cloud-hosting business.” Kudos to Torrentfreak for admitting there is a distinction between legitimate cloud storage providers like Dropbox and those cyberlockers that are set up primarily to profit off infringement.

Levi’s Was First. Now, Several Major Brands Want to Pull Their Pirate Site Advertising… — Digital Music News reports that since the USC Annenberg Innovation Labs released its report on ad-funded piracy, “numerous brands” have contacted the report’s authors seeking advice on preventing their brands from showing up on sites with widescale infringement.

Reading Between The Lines Google Tells The Truth On Ad Supported Piracy, Now Let Markets Do Their Work — Speaking of the USC ad report, the Trichordist does an excellent job dissecting Google’s “elegant non-denial” made in response to the report’s conclusion that Google ads provide a major source of revenue for online piracy.

Hotfile, Megaupload, and the Future of Copyright on the Internet: What can Cyberlockers Tell Us About DMCA Reform? — Finally, have a look at third-year law student Ross Drath’s recent paper on secondary liability and cyberlockers. Drath examines issues that are currently facing courts in two major cyberlocker cases and then offers some recommendations for increasing both certainty and effectiveness in protecting copyrighted works online. Says Drath, “It would be naïve to expect that Internet piracy could somehow be completely eradicated. Like alcohol and drug abuse, these practices will surely continue regardless of the level at which they are regulated. But we can still do better than we are doing right now.”