Re: Re: Conde Nast vs. Blackmask (copyright infringement)

At 6:45 PM -0400 4/11/06, Steven Jamar wrote:
>It does seem that the public is not served in this (and similar)
>particular instances of works not being exploited by the copyright
>holder and being made available by others and then the copyright
>holder taking the work out of circulation again.
>
>I wonder, could we find a sort of "compulsory equitable license" for
>this sort of situation which would then be withdrawn upon the
>copyright holder demonstrating actual exploitation of the work again?
>

It's a thought-provoking idea. Let's kill it in the crib before it learns to walk. This is too long, but if you get bored, read the last two paragraphs before you quit.

It's a long way from "The fact that a work is unpublished shall not itself bar a finding of fair use" to a "compulsory equitable license." The amendment to the sec. 107 was prompted by the misapplication of the equitable notion that "non-exploitation" was the copyright holder's privilege, and that publishing an author against his will was presumptively unfair -- sort of a droit moral combined with the enforcement of privacy rights. The compulsory license turns the traditional notion of equity on its head. It's one thing to hold that it might still be fair use if a magazine scoops a competitor's serialization rights (Harper & Row). It's another to recognize a compulsory license to exploit the private correspondence of a famous recluse (Salinger).

An analogous issue is before the Supreme Court in the E-Bay case, where the Court is asked to reevaluate the relatively automatic grant of permanent injunctive relief upon a finding of patent infringement. One of the grounds relied upon by the district court in denying the injunction, along with others, was the patentee's failure to practice the invention. The Federal Circuit reversed, remanded, and ordered the district court to enter an injunction. DOJ has filed an amicus brief, asking the Court to affirm the Federal Circuit, and reiterate the traditional four-part test for injunctive relief. DOJ opposes consideration of the patentee's failure to practice the invention as weighing against injunctive relief, and in favor of awarding royalties instead. The equities in the patent context are a lot stronger in favor of the infringer who invested millions of dollars in developing and marketing a useful, perhaps life-saving technology, only to have the brakes applied by enforcement of a patent he didn't know about. Still, I feel safe predicting that the Supreme Court will choose relatively automatic injunctions that force the parties to negotiate the value of practicing the invention (RIM), over a judicial determination of a royalty rate that lets the infringer decide the value of the invention by pricing the accused product before applying the court-ordered royalty and mailing the inventor a check for the right to use his invention.

In contrast, I don't see any equities that work in favor of the defendant engaged in willful infringement of a copyright on the notion that he should be able to decide whether, when, and how an author's work should be exploited if the copyright holder doesn't want to publish. I don't think there are any equities at all in favor of the infringer -- the whole proposal is based on the public interest in access to unpublished works. That might strip the copyright holder of some equitable entitlement by applying the "clean hands" doctrine; but the copyright holder is sitting on a legal right -- he doesn't need an equitable entitlement. The defendant doesn't have either equity or law on his side, except as the class representative of the general pubic interest in reading what someone has to say.

It's almost impossible to image the case in which the refusal to publish harms the public interest in any meaningful sense. The public isn't denied access to any ideas or information, just the author's expression. Authors decline to publish, or withdraw works from publication, for all kinds of reasons. They might be embarrassed by an early novel, or reverse their thinking about a controversy they wrote about. I don't know if anything Stephen King ever wrote is out-of-print, but a library of his out-print-works, published under some sort of compulsory license, would obviously dilute the market for his new works. His recent novels, for which he might get a 15% royalty out of a $10 paperback, would be competing with the unauthorized re-issue of works that are out of print, priced at $1 because the compulsory license was a cost-free acquisition. Even if the copyright holder is entitled to a generous 50% royalty on the compulsory license, he's getting screwed if it cuts into sales of his newer novels, earning him 50 cents instead of $1.50 on the product substitution.

The strongest case I can build for application of Prof. Jamar's suggestion is a decision by Microsoft to stop distributing the Macintosh version of Word. It's like the sword of Damocles hanging over Apple -- the death blow. Microsoft publishes it to keep Apple alive so they can insist they don't have a monopoly. But even on those "best facts," I can't imagine giving Apple the right to install Word on every mac it sells on the fiction that Microsoft has abandoned its copyright. And how would it work? Does Apple also get to issue derivatives too? If Microsoft "abandons" Word X for Mac, can Apple re-issue Word X, and then release Word X.1 to keep up with the competition? Or try this: there are a lot of people, like me, who think it's all been downhill since Word 5.0 for the Mac. Can we re-issue Word 5.0 ($5 per copy) if it cuts into Microsoft's market for Word X priced at $299? Let's assume we all hate Microsoft enough to screw them and call it equity. The saving grace that lets us pretend it's equitable is Prof. Jamar's concession that "the 'compulsory equitable license' for this sort of situation ... would then be withdrawn upon the copyright holder demonstrating actual exploitation of the work again." Is Apple's compulsory license "withdrawn" when Microsoft "demonstrat[es] actual exploitation of the work again" by re-issuing Word Classic 5.0, priced at $4,999 (a price I might even pay)?

All other economic, equitable, policy and public interest considerations aside, isn't this "compulsory equitable license" an obvious infringement of the author's First Amendment right "not to speak"?

As an aside, in the case Noring points us to, the economics are a little different. Take a look:
http://www.blackmask.com/catalo/default.php?cPath=60_63. You can download a lot of stuff for free in a variety of formats at the Blackmask website, which would seem to satisfy whatever public interest justifies a compulsory license arising out of non-publication, and might even look "heroic" in a comic book sort of way as he single-handedly takes on the force of evil at Conde Nast (even sounds like a comic book villain). But what he sells -- priced from $8.96 to $17.96 -- are copies of vintage comic books "as originally published," including the prominent 10-cent cover price. Now go to E-bay; look at collectibles/comics/golden age; sort by price, high-to-low. Right now the list is topped by the 1940 debut of Captain Marvel, advertised as "highest graded copies" (note the plural "copies"). Someone other than a cynical old lawyer might assume that "highest graded copy" means a really well-preserved original issue, analogous to the F/VG rating ("fine book in very good jacket") used by book collectors to refer to highest-value first editions. That impression might be reinforced by the top bid of $8,110 with 4 days to go (or Buy it Now for $45,000). But that would be a mistake. "Golden Age" comic books expressly advertised as "first editions" on E-Bay top out at $175 for five 1953 issues of Blackhawk. Now, god knows Blackhawk isn't in Captain Marvel's league; and 1953 is the tail end of E-Bay's "Golden Age" of comic books, which pretty much refers to the period between the introduction of pulp comics and the realization that they were "collectible," and might someday be worth their weight in gold if they were sealed in plastic and stored away, instead of read on the school bus and tossed away (what the hell; buy two -- they're only 10 cents). So it's not surprising that the price drops dramatically based on supply and demand between the 1940 debut of Captain Marvel and Blackhawk's adventures during the year I was born. What's telling is that they can't call Captain Marvel a "first edition." So far as I can tell, there is no meaningful legal distinction between the $10 comic book you can buy from Blackmask "as originally published," and the "highest graded copy" you might sell on E-Bay for $10,000. What Blackmask is really doing here, it seems to me, is fucking with the collectibles market for vintage comic books.

Let me emphasize, before I get sued, that I'm not accusing anyone of fraud or false advertising. Blackmask offers full disclosure that's completely truthful. The E-Bay ads are only misleading if you don't read them carefully (the plural "copies" is a nice touch -- bet they'll fill an order for a dozen at $45,000/each); and only fraudulent if the seller has cohorts pumping up the bids to lure the gullible. But there's a sucker born every minute; it's a big market; and what's cool about the adverse possession claim, over Prof. Jamar's more sensible and more obvious public domain alternative, is that Blackmask can sue copycats who steal their action by copying their copyrighted copies.

John Noble

At 6:45 PM -0400 4/11/06, Steven Jamar wrote:
>There is a US District Court that sits in Greenbelt MD and I assume
>the appearance before the magistrate will, as it is, or at least was
>when I practiced actively, a pretrial planning session to set
>discovery schedules and the like, and to simplify issues if possible.
>
>Adverse possession of a copyrighted work. . . . Hmmm. Don't think
>so. SOL will probably not relate back, but the injunction could
>still issue prospectively for the ongoing violation.
>
>If the copyright holder is known, it is not really an orphan work,
>is it, though I understand some have advocated broadening orphan to
>include no-longer-exploited works previously published (to
>distinguish from unpublished works).
>
>It does seem that the public is not served in this (and similar)
>particular instances of works not being exploited by the copyright
>holder and being made available by others and then the copyright
>holder taking the work out of circulation again.
>
>I wonder, could we find a sort of "compulsory equitable license" for
>this sort of situation which would then be withdrawn upon the
>copyright holder demonstrating actual exploitation of the work again?
>
>Speculation is fun. Not much in the way of legal support here, but
>fun to speculate nonetheless.
>
>Could this be a [new?] species of misuse? If you have functionally
>abandoned your exploitation for 20 years, you cannot now come along
>and threaten those who are making it available? Or would you need
>to show some sort of trap or bad conduct other than simple
>non-exploitation?
>
>How about abandonment through non-exploitation and thus it is in the
>public domain? I think this better than "adverse possession" --
>since that would work a change of ownership rather than merely a
>loss of copyright -- but still very problematic.
>
>Steve
>
>On Apr 11, 2006, at 4:00 PM, Vance R. Koven wrote:
>
>>Indeed, one of the more interesting points (to my ignorant eye) raised
>>by the description in the blog was whether a plaintiff is entitled to
>>bring a copyright infringement case before a magistrate. I presume (if
>>the reporting is at all correct) that they were talking about a US
>>Magistrate, but still...
>>
>>Vance
>>
>>On 4/11/06, Jon Noring <<mailto:jon[_at_]noring.name>jon[_at_]noring.name> wrote:
>>
>>>Most here may have already seen this, but for the few who haven't,
>>>appears to be a very interesting copyright infrinement case:
>>>
>>>For the details and links elsewhere, see:
>>>
>>>
>>><http://www.teleread.org/blog/?p=4631>http://www.teleread.org/blog/?p=4631
>>>
>>>with a small update at:
>>>
>>>
>>><http://www.teleread.org/blog/?p=4639>http://www.teleread.org/blog/?p=4639
>>>
>>>
>>>Lots of interesting aspects to this case, particulary with regards to
>>>the Public Domain.
>>>
>>>Jon Noring
>>>
>
>--
>
>Prof. Steven D. Jamar vox: 202-806-8017
>
>Howard University School of Law fax: 202-806-8428
>
>2900 Van Ness Street NW
>mailto:<mailto:stevenjamar[_at_]gmail.com>stevenjamar[_at_]gmail.com
>
>Washington, DC 20008
><http://www.law.howard.edu/faculty/pages/jamar>http://www.law.howard.edu/faculty/pages/jamar
>
>
>"Our scientific power has outrun our spiritual power. We have guided
>missiles and misguided man."
>
>
>- Martin Luther King Jr., "Strength to Love", 1963
Received on Thu Apr 13 2006 - 02:00:31 GMT