Re: is this copyright valid?

On 11/05/98, Timothy Phillips <hrothgar[_at_]telepath.com> wrote:
>
> Questions for the list: [Original message reproduced below]
>
> (1) To what does the 1970 copyright claim apply under U.S. law? I
> can't find anything, other than the text of the "Condition of
> Supply." (I consider my quoting it here to constitute a fair
> use.) As I read the law, the text of each volume of The Musical
> Times is certainly in the public domain, having been published
> prior to July 1, 1909. The microfilm might qualify as a
> compilation of volumes 1-4 of the Musical Times, but I doubt
> that the selection (of vols 1-4) and arrangement (in chronological
> order) would qualify as original. Have I missed something?

They may perhaps be claiming copyright in the photographic reproduction of the text of the Musical Times. Photographs can be copyrighted if they are original. I agree with you that they haven't added anything original, but that doesn't mean that you wouldn't get a fight from them.

> (2) To what does the 1970 copyright claim apply under U.K. law? Does
> the U.K. have a "published edition" copyright? If so, how long
> does it last?

Don't know.

> (3) Is the first part of the "Condition of Supply" valid under U.S.
> law? I suppose I would be in the circuit of the ProCD ruling.
> What about elsewhere?

That's still a hotly debated question. I think it would be valid under ProCD, but it's still unclear to what extent ProCD will be adopted in other parts of the country. I'd like to see this litigated in the context of traditional media like books and microfilm, because with a few notable exceptions (e.g., the Northern District of California), I think courts are easily misled when dealing with digital technology.

> (4) Is the second part of the "Condition of Supply" valid under U.S.
> law, or the law of any State? I am skeptical. As I recall, one
> of the reasons the ProCD court found shrink-wrap licences to be
> OK was that they bind ONLY the purchaser. Wouldn't making the
> "condition of supply" binding on all subsequent purchasers
> subject the microfilm to "perpetual servitude"?

I think the second part is much less likely to be valid. However, it reveals one of the weaknesses of the ProCD opinion. Even though the court distinguished a license binding an individual from one binding the world, the remainder of its rationale would apply equally to both situations.

If contract law can trump copyright, then the public domain becomes meaningless. Some have argued that no one would make this kind of material available if it could be copied for free; I disagree. In my opinion, the microfilm would cost the same amount of money whether or not the copying restrictions are valid, because people are willing to pay SOMETHING for the convenience. If publishers believe that is not sufficient to cover the cost involved in photographing the journal, it is up to them to demonstrate it.

> (5) If the 1970 copyright claim is invalid under U.S. law, and if
> Novello has offices in New York, do you think the presence of an
> invalid claim of copyright would provide grounds for a
> false-advertising claim against Novello under New York law?
> (See Paul J. Heald's, "Payment Demands for Spurious Copyrights:
> Four Causes of Action," Journal of Intellectual Property Law,
> 1(2),259-292(19994)).

Although I greatly appreciate Paul's efforts in this regard, and wish that someone would try to use his arguments against publishers, I have serious doubts that a court could be persuaded to impose liability for this type of overreaching.

> (6) Does the presence of the "Condition of Supply" at all suggest that
> Novello knew that its copyright claim was weak?

I think so.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Mon Nov 09 1998 - 23:14:29 GMT