Re: Preemption

On Tue, 05 Jan 1999, Steve Jamar <sjamar[_at_]law.howard.edu> wrote:
>
> Copyright law does not eliminate contract law and freedom to contract
> concerning the rights granted in copyright. Indeed, the contemplation
> is that these statutory rights are generally alienable and transferable
> by contract. Indeed, the copyright act explicitly says so. So painting
> with a broad brush is not helpful, it seems to me.

Hear, hear!

> This leaves us with particulars.
>
> One particular question with some nice arguments on both sides is the
> one embedded in the museum hypo. One person owns a painting which is
> in the public domain. It is not a violation of the copyright act for
> anyone to copy it and distribute those copies howsoever the person
> wants. That is what public domain means.
>
> But, the owner wants to get more economic value from it so the owner
> limits access to it. This, it seems, is legal - just an incident of
> owning the physical property (as distinct from owning the copyright).
> And that owner can limit the making of reproductions by, for example,
> prohibiting access except on condition that those who have access do
> not take any reproduction equipment with them when they view it.
> This too seems ok.

I agree. But this may also involve the rights of the owner or lessor of land to restrict access to the real estate, as well as the putative right of the owner of tangible personal property to restrict another's ability to reproduce that property. It would therefore be an easier case.

> But what about the situation where access is allowed to the public
> domain work and the only protection by the owner is to say that there
> can be no copying of it for resale purposes -and this is done by
> contract. Does this violate the copyright act? Is this contract
> preempted? I don't think so for unique works.
>
> But, I think a different result is warranted for multi-copy works,
> like books. I don't think the private library can have a contract
> provision which prohibits me from copying and republishing, say,
> the text of Tom Sawyer, even if I got it from them. And this is
> because of the multiplicity of extant copies.

This gives me pause. I see no principled reason why the answer should depend on the extent to which other copies are available, with the strength of enforcement of the restraint inversely proportional to the arguable public need for access. If the library denies permission to copy Tom Sawyer, the borrower should buy his own copy or borrow it from someone who imposes no such restraint. The fact that the work is freely available argues in favor of allowing the hypothetical library to impose its capricious policy.

Moreover, I think that the financial health of a small but valuable industry depends in some measure on Steve being wrong about this. There is a segment of the photographic stock house industry which specializes in artistic and historical subjects. Most of the images in their libraries are in the public domain, and many of them are quite famous. What, then, does such a business "sell" or "license" when it charges a fee to a customer for use of one of the images in its inventory? It seems to me that it charges for the service of acquiring, inventorying and indexing the images, and retrieving a particular image or selection of images at the request of a client. But there stock houses customarily base their fees on the nature and extent of the use to be made by the customer, not the cost of the image and the labor involving in locating it. I believe that such non-cost-based quantum valebit pricing is not only justified, it is economically the most sensible approach and socially useful in that it keeps the images affordable for small users. However, if the stock house could not enforce a usage limitation, it would be an easy matter for an unscrupulous customer to pay a modest fee for a limited use and them make a much more extensive use of the image.

> Now, it seems to me the tough question becomes this - can the owner
> of the private library now stop me from ever using the library again?
> Can it refuse to contract with me in the future because I violated an
> illegal provision of the contract? I think not.

I think so, for the reasons just given. Even if the stock house is not inclined to sue the unscrupulous customer for exceeding the limitations it imposed on its use of an image, it should certainly not be required to suffer the same deceit from the same customer repeatedly.

> And now to databases. If the database has public domain information
> in it, and I have legal access to that information, and the information
> is not a unique work, then I think any purported license term which
> limits my ability to copy the PD information should be void as against
> public policy.

It seems to me that this is too general a statement. The answer probably should depend on the purpose of the database and the uses to which its contents can reasonably be expected to be put. I also suspect that this should be the subject of Congressional attention with some sort of compulsory license scheme worked out.

Larry Weiss
<pgw[_at_]idt.net>

P.S. I just found out why this machine spells "defense" with a "c." Somehow I got hold of a British spell-checker. It tried to correct "favor" and "labor" to "favour" and "labour." Received on Sat Jan 09 1999 - 20:33:21 GMT