Tag Archives: law

Copyright Law Class Sing-Along!

OK, it’s not really a sing-along. Because no one wants to hear me sing. Trust me on this.

But it is a copyright law class, and it is going to be here on this blog. Kind of, anyway.

This spring I will be teaching a course in copyright law* to law students, and I thought I would do a series of posts in conjunction with the course.  The class meets 14 times, each Thursday for 15 weeks with one week off for spring break, starting a week from today. In other words, January 16th.

So, what I am going to do is to post a summary of each class here on the blog along with links to the cases we read and talked about on that day. That way, any of you who want to can follow along. (And you can sing too, I guess, if that is what works for you.)

A few caveats:**

  1. The course itself is not specific to the interests of writers. Copyright is much broader than that and the course reflects that. I will try to point how specific issues do and do not apply to writers where relevant, but most of the content will be general copyright.
  2. This series will not duplicate the full law school course. Not even close. That is just not possible. However, that being said, I don’t think that will prevent the series from being interesting and informative.
  3. Full understanding of the material really requires more general legal training of the sort one would receive during the first year or so of law school. A series of blog posts will not make you a copyright lawyer. The goal is not to make you able to evaluate and handle copyright law matters on your own.
  4. The course will focus almost entirely on US copyright law. That’s just what the course is.

Posts will go up late afternoon or early evening each Thursday. So forget about going out on Thursday nights – it’s copyright time!


*I am also teaching a course on Real Property, but I presumed there would be less interest in equitable servitudes, adverse possession and the Rule Against Perpetuities. Though the Rule Against Perpetuities is pretty cool. I mean what else involves fertile octogenarians and unborn widows?

**I’m a lawyer. Of course there are going to be caveats.


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Copyright Law and the Availability of Books

One of my goals for this blog is to expose writers to other views of copyright law and policy. Writers, in my experience, tend to view copyright as akin property and as having a moral justification – “I created it, therefore I should own it.” I know that is an oversimplification; most writers’ views contain more nuance than that. But it is, I think, an accurate representation of the core of those views.

While one can find a thread of that view, the natural rights view, in copyright law and cases throughout the history of US copyright law, it is not the dominant or explicit justification for copyright in US law. It is a view more commonly associated with the continental European approach to copyright.

The Anglo-American approach to copyright has expressed a different narrative. In most explicit discussion of the theory underlying copyright law, copyright is about incentives. On the surface, this fits with the writer’s view. A creator would not invest the time and effort into writing a book unless the law provided a means to capitalize on that work. And if that were the extent of it, then we wouldn’t see many if any divergences between the natural rights view and the incentive view. However, the incentive view goes deeper when we examine the goals toward which those incentives are pointed.

The enumerated powers in the US Constitution includes the following in Article I, Section 8, Clause 8:

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

This is commonly referred to as the IP clause and it serves as the basis for federal legislative power covering patent and copyright laws.* Note that it sets forth as the goal “to promote the progress of science and useful arts” and not to promote the creation of works. The Constitution was drafted at the end of the 18th Century, a century featured a long debate in England about copyright and patent law. The Founders would have been quite familiar with the policy arguments.

founding fathersThe goal of the incentive structure set up by copyright law, so it is argued, is to promote benefits to society. That is done primarily by providing creators with economic incentives, but those economic incentives are not the ultimate goal. They are merely a means to an end.

This is where balancing comes in. In pursuit of that end, the economic incentives might be limited and balanced against the good of society. More specifically, copyright is seen as limiting the benefit to society by increasing costs of access to the works and at times reducing access to the works.

A theorist looking at the incentive theory would say that we want to maximize societal benefit. That means a couple of things. First, we should only give the bare minimum of copyright protection necessary to guarantee production, and not one bit more. Of course, there is no single line in the sand so to speak. It is a continuum in which more protection theoretically leads to more works, and less to less. Finding that optimum point for societal benefit is the incentive theorist’s goal. An incentive theorist only gives the bare minimum necessary to insure production because every increase in protection theoretically comes at a cost to society – some times literally, as in the works cost more. Second, most theorists would include not only production of a work but also access to the work as a necessary component of societal benefit. Greater and longer protection can in certain circumstances decrease the availability of a work.

It is this second point – the relationship between copyright law and access to works – that is the subject of a recent study that generated quite a bit of interest in academic copyright circles (and beyond – does The Atlantic qualify as beyond?):

How Copyright Makes Books and Music Disappear (and How Secondary Liability Rules Help Resurrect Old Songs)

by Paul J. Heald

Heald’s study is nicely summarized by Rebecca Rosen in The Atlantic. Her summary features the tagline: “A book published during the presidency of Chester A. Arthur has a greater chance of being in print today than one published during the time of Reagan.” Some high points from the article:

There were as many books available [on Amazon] from the 1910s as there were from the 2000s. The number of books from the 1850s was double the number available from the 1950s. Why? Copyright protections (which cover titles published in 1923 and after) had squashed the market for books from the middle of the 20th century, keeping those titles off shelves and out of the hands of the reading public.

. . .

“Copyright correlates significantly with the disappearance of works rather than with their availability,” Heald writes. “Shortly after works are created and proprietized, they tend to disappear from public view only to reappear in significantly increased numbers when they fall into the public domain and lose their owners.”

. . .

Heald says that the WorldCat research showed, for example, that there were eight times as many books published in the 1980s as in the 1880s, but there are roughly as many titles available on Amazon for the two decades.

With beginning of the semester fully upon me, I haven’t had the time to go through the full study and likely won’t anytime soon. However allow me to play the TL;DNR devil’s advocate.

First, I wonder if the game has changed. Has the recently emerged ability to keep any book in stock without warehousing costs (eBooks, POD) changed what will happen to books in the future? Perhaps this dip is a thing of the past. In pre-Internet days, shelf space was at a premium and the costs of physical books over their lifespans perhaps contributed to the effect seen in the study. In that world, it made sense for publishers to maintain supplies of the most recent books if those were going to produce the most sales in the short-term. And keep in mind, that the lack of these books availability in eBook or POD formats may in large part  be due to the inability of publishers to undertake the digitization process for massive backlists and due to a simple loss of information on who owns the copyrights for the lost books (orphan works).** In a world where maintaining the availability of books is virtually costless, we may not see such a decrease in availability moving forward.

Second, I wonder how much influence school reading lists have on the availability of some of these older works. Is that list of canonical works skewing the data?

Third, even taking this effect into account, it may not indicate that current copyright law’s incentive calculus is off. Even if lengthy copyright duration is reducing the relative availability of works, the net creation and value produced by copyright incentives could still be ideal or at least positive. The number of available works is just one small part of the measurement of copyright’s results.

* Though perhaps counterintuitive to our modern word usage, “science” refers to copyright and “useful arts” refers to patents.

**The orphan works problem and proposed “solutions” could fill several more blog posts.

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Can I? – Thinking about legal questions

Frequently, authors ask what I call “Can I?” questions. Basically – “Can I do X without getting into legal trouble?”

Raverinlaw failed to get off the ground when I could not find a glow stick-based wordpress theme.

Raverinlaw failed to get off the ground when I could not find a glow stick-based wordpress theme.

No, I’m not talking about ecstasy. This isn’t Raver-in-Law. When I say “can I do X,” X refers some action by an author that might lead to legal problems. For example, it might be “can I include song lyrics in my novel?” or “can I use another author’s character in my story?” or “can I write a story about a sentient Barbie doll?” or “can I use a celebrity as a character in my novella?”.

When I hear a question like that, I actually think about it as three different related-but-separate questions, and I encourage you to do the same. Those three questions are:

  • Question #1: Will a court rule against me for doing X?
  • Question #2: Will a gatekeeper react negatively to my doing X?
  • Question #3: Will I get sued for doing X?

So, let me explain why you want to consider each of these three anytime you ask a “Can I?” question. I will assume you are in the world of traditional publishing. At the end, I’ll briefly go into the differences in the self-publishing context.

Question #1: Will a court rule against me for doing X?

At its core, this question asks about how the law judges X. Is X copyright infringement? Is X an infringement of a celebrity’s right of publicity? Is X trademark infringement? Another way to rephrase the question is will I win or lose a lawsuit about X.

My impression is that this is what most writers have in mind when they ask a “Can I?” question. Although the answer to this question influences the answer to the other two questions, it may ultimately be the least important of the three questions in a writer’s decision-making process.

It is also my impression that this is what most lawyers, particularly newer lawyers, think when they hear a “Can I?” question. It’s certainly where my mind goes first. You see, this is what lawyers are trained to do – i.e., turn facts into legal conclusions. Answering question #1 is a lawyer’s core competency, and therefore it is the realm in which they feel most comfortable.

It’s not the only competency a lawyer can offer. An experienced lawyer should also be able to offer you guidance on question #3, and more experienced lawyers will offer counsel on question #3 without your prompting.

Question #2: Will a gatekeeper (e.g. an editor) react negatively to my doing X?

If your goal is to get published in a magazine or by a traditional book publisher, then you will have to get past at least one gatekeeper. This gives the “Can I?” question a new dimension, namely question #2. If an editor thinks your doing X creates too great a risk of incurring liability or of merely getting sued or of creating resistance within their own company, then your having done X may lead them to reject your story or novel. Regardless of its other wonderful qualities.

This is what Writer-in-Law thinks fantasy editors look like.

This is what Writer-in-Law thinks fantasy editors look like.

The answer to question #1 might be that you would win any resulting lawsuit, but the answer to question #2 might still be negative in terms of your getting past the gatekeeper and reaching your goal of getting your story or novel published. In fact, since the answer to question #1 is rarely if ever given in absolutes (“You would win”) and is more commonly given in probabilities (“You would likely win”), you can see how a gatekeeper might be unwilling to take the risk. Further, most gatekeepers are unlikely to seek out legal advice while considering your manuscript. So their impression of the risk or even their not wanting to have to go through the trouble of getting legal advice may lead to a rejection of your manuscript – a rejection not based on its overall quality but simply on your having done X.

Of the three questions, question #2 is also the least likely to be answered by a lawyer. It is not really within their area of expertise unless they have a lot of experience in the publishing industry (precious few lawyers do, even among those who specialize in intellectual property law). You really have to get answers to this question either by talking to people with experience in the industry or by examining what has gotten past gatekeepers.

Question #3: Will I get sued for doing X?

As I pointed out in an earlier post about the Midnight in Paris case, whether you win a case or not is not the only consideration. Defending a lawsuit can cost you a lot of money, and if you are in the US, you have to pay your own costs and attorneys even if you successfully defend your work. Your total outlay can get into six figures just to get you through a trial. It will also cost you time across multiple years. It can keep your work in legal limbo for years. And that does not even factor in the psychic drain caused by years of fighting and uncertainty.

So the question “Will doing X get me sued?” may be just as important as “Will a court rule against me?”. Of course, the likelihood of winning a lawsuit theoretically influences the risk of being sued. Theoretically. Again, remember the Midnight in Paris case. No one though that was a winner, but the Faulkner estate still sued and Sony still had to defend themselves. There is no question that some rights owners will pursue anyone who comes even close to their rights. Many of them have such extensive resources and the willingness to use them that most smaller entities just stay away from their rights even where the law would likely allow a particular use.

In other words, even if you are legally in the right, do you want to expend the money and energy defending your “doing X”? I submit to you that the answer is most often going to be no. The only exception I can think of is where the entire expression, what you are trying to say, depends on the use likely to anger a rights holder. The Wind Done Gone is an example. They had to be fairly certain that Margaret Mitchell’s estate would sue, but went ahead with publication anyway.

Experienced lawyers should be able to advise you on many entities who are known for vigorously defending their rights, even when the use in question is likely within the letter and spirit of the law. However, they can’t predict what every rights holder will do. Again, observing what is already out there and whether a rights holder has sued in the past can give you some, but not complete, guidance.

Self-publishing and the questions

The questions and my discussion on them has so far assumed traditional publishing. How do they change for self-publishing?

space marineThe primary difference is that the gatekeepers disappear. You don’t need to get past an editor worried about your “having done X.” However, that doesn’t mean question #2 goes away, because you still have an intermediary who is in control of the availability of your work. Amazon or some other online retailer can still pull your book or website when a rights holder complains to them (through a notice and takedown procedure or a threat of suit against the retailer). Do you think Amazon has a big interest in fighting for you? Nothing against Amazon or any other retailer, but it’s not really their fight. Recall what happened with the recent ‘Spots the Space Marine‘ kerfuffle. Games Workshop did not sue the author; they got Amazon to pull the book. Now, eventually Amazon put it back up, but only after a fairly big rights advocate (EFF) entered the fray on the side of the author.

So question #2 becomes: Will an intermediary pull my work because someone complained about my doing X?

The other difference with self-publishing is that you miss out on some of the protection the gatekeepers provide. Their reluctance to push boundaries may be a negative in your attempt to get your work traditionally published, but it also protects you from unwittingly getting yourself into trouble.

Take away: When asking “Can I do X?” your most important consideration may not be whether you would win in court. It will probably be whether you want to fight gatekeepers, intermediaries and litigious rights holders – or whether you want to spend your time and energy writing.

(And remember, each circumstance is different. I don’t know yours. So this is not legal advice!)


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The First Sale Doctrine: History through Today

One of the current controversies that I want to explore in this blog is the resale of eBooks.

Calm down, everyone. Go to your happy place.


OK, I’m not going to discuss eBook resale directly in this post; instead, I want to lay some of the groundwork for that discussion by providing some basic information about copyright’s first sale doctrine.

If you purchase a BluRay of the Firefly TV series and then give it a friend,* are you a copyright infringer? Is the owner of Redbox a copyright infringer for renting a BluRay disc of The Avengers? What about the proprietor of a used bookstore, or a customer of the same?

Intuitively, you probably know the answer to all of those questions is no. The first sale doctrine is the reason the each of those commonplace activities is not an act of copyright infringement.

A publisher, a department store, and a castaway

Hallie Erminie Rives in a kimono. I don't know why she is in a kimono.

Hallie Erminie Rives in a kimono. I don’t know why she is in a kimono.

At the beginning of the 20th century, Hallie Erminie Rives was a best-selling author as well as being a daughter from one of the oldest families in America and the wife of a prominent diplomat. Her books included Satan Sanderson, The Kingdom of Slender Swords, and The Valiants of Virginia, as well as Smoking Flax, controversial even when published in 1897 for its positive portrayal of a lynching. One of her other novels, The Castaway, was at the center of Bobbs-Merrill Co. v. Strauss et al., doing business as R.H. Macy & Co., the 1908 Supreme Court case that first established the first sale doctrine in the United States.

The original cover. Since the book sells itself about being three men whose lives are ruined, I'm not sure why there is a woman on the cover. Unless it's her fault that ... OK, I'm not going there.

The original cover. Since the book sells itself as telling the story of three men whose lives are ruined, I’m not sure why there is a woman on the cover. Unless it’s her fault that … OK, I’m not going there.

As an aside, the copyright in The Castaway expired a long time ago, meaning it is now in the public domain. That means, among other things, that you can probably find a lot of presses you’ve never heard of offering it for sale on Amazon. Of course, you can also find it available for free here if you want to take a look.

Now, back to the history of the first sale doctrine. OK, maybe not just yet. In the past few days, we’ve all been reading about the Apple decision and the attempts of big publishers to control prices, more specifically about publishers trying to find some way to force Amazon higher than their $9.99 price point for eBooks. Well, I’m sure you didn’t think that was the first time publishers tried to control the prices of their books. The underlying facts in Bobbs-Merrill v. Strauss were strikingly similar at least with respect to each party’s goals. The publisher Bobbs-Merrill wanted to maintain a price point of $1 while the department store Macy’s wanted drive foot traffic to its store by offering popular books at below market prices. Sound familiar?

In an attempt to keep the retail price of its books at a high level, Bobbs-Merrill printed the following just below the copyright notice in The Castaway:

The price of this book at retail is one dollar net. No dealer is licensed to sell it at a lower price, and a sale at a lower price will be treated as an infringement of the copyright.

A Cad? Not sure whether that word choice is less than timeless or AWESOME

A Cad? Not sure whether that word choice is less than timeless or AWESOME

Macy’s purchased the book wholesale and resold them for 89 cents. Bobbs-Merrill in turn sued them for copyright infringement.  Bobbs-Merrill did not allege that Macy’s had copied the book, but rather they alleged that Macy’s had infringed their “right to vend” the copyrighted work.

Most people think of copying when they think of copyright, and certainly the right to exclude others from making unauthorized reproductions is the central right granted to copyright holders. However, there are other rights. The Copyright Act of 1790, the applicable law in 1908, also included the “right to vend” the copyrighted work. The Copyright Act of 1976, the currently applicable copyright law, words this right as the exclusive right to distribute copies of the work.

The Supreme Court rejected Bobbs-Merrill’s argument that Macy’s resale of the book for les than the price specified constituted infringement of the copyright. Instead, they said that the right to vend granted by the copyright statute did not include the right to control resale of copies of the work after those copies were initially sold by the publisher. Note that the Court was explicit about its holding being an interpretation of the Copyright statute and not involving any claim of a contractual obligation created by the language printed in the book or otherwise.

This didn't work.

This didn’t work.

The first sale doctrine today

A year later, the Supreme Court’s holding was codified into the Copyright Act of 1909. The Copyright Act of 1976 also included what became known as the first sale doctrine in section 109:

Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. [106(3) provides for the right of distribution.]

The statute, through later amendments, places some very interesting limitations on the first sale doctrine, as do later cases, particularly those involving shrink-wrap licenses on software. However, I will leave those for later discussions.

The first sale doctrine is often referred to as a doctrine of exhaustion – as in, the copyright holder’s rights in that particular copy are exhausted by the first sale. Another way to think of the first sale doctrine is to think of it as a balancing between two sets of property rights. The copyright owner holds one set of property rights, the copyright rights. The owner of an individual copy of a work holds the other set of property rights, the personal property rights in the physical object itself.

Remember that copyright law and the statute explicitly distinguish between the copyrighted work of authorship (an intangible) and a particular embodiment of that work (a tangible book, disc, print, etc,). The statute, in an apparent attempt to make the wording as confusing as possible, calls these embodiments “copies.” Except in the case of music, which for historical reasons the statute refers to as phonorecords. Don’t get me started on music copyright, the parachute pants of the copyright world.

So the owner of a physical object has personal property rights in that object. Just as copyright gives you a bundle of rights, so too personal property gives you a bundle of rights. One of those rights is the right of alienation. Now, that doesn’t involve bald aliens who get drunk on sour milk. The right of alienation basically means that the owner of property has the right to transfer the property rights to someone else.

So the conflict, and the need for balancing, then comes from the copyright holder’s exclusive right of distribution and the copy owner’s personal property right to alienate the copy. Section 109 and the first sale doctrine resolve that conflict. The copyright holder does have the exclusive right to distribute any copies of the work, but once the copyright holder has parted ways with a particular copy, the right of distribution no longer applies to that particular copy. The distribution right is exhausted by the first sale. Note that even though we call it the first ‘sale’ doctrine, the relevant distribution is any transfer of ownership whether it is a sale or a gift.

That’s the first sale doctrine in a nutshell. Hopefully, that will provide a foundation for later discussions of whether the first sale doctrine applies to virtual objects, such as eBooks.

*One of the greatest things a friend can do, by the way.

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Lex scriptoria

Lex mercatoria → lex scriptoria → this blog

What is lex scriptoria? It’s Latin for “the law of writers” and is my conception of what this blog is about. I created it to be evocative of the well-known phrase lex mercatoria. OK, well known if you are a legal historian. All right, a legal historian interested in medieval commercial law.

lex mercatoriaLex mercatoria refers to a body of customs and rules that were developed by merchants during medieval times. It  is Latin for the  “law of merchants”.  Lex mercatoria served as an international set of laws enforced by tribunals of merchants separate from either governmental or ecclesiastical courts of the day. It declined as stronger national systems, including national commercial codes, arose in the late medieval period, but the national codes were often adapted from lex mercatoria, and courts still looked to lex mercatoria in commercial disputes. It eventually came to be used as a general term for commercial law itself.

So, for me, lex scriptoria describes a subset of law and custom. It is all the law relevant to writers as well as the customs, or practices, of those in the business of writing. While lex scriptoria includes actual law – statutes and cases – note that it also includes the practices of those in and around the world of writers.

In the law plus practices formulation, I bring expertise in the former and an interest in the latter. I hope that his blog serves a useful device for exploring both.

I plan to focus both on newsworthy issues as they arise and on the general background of law that writers might want to know. My hope in doing so is that this blog will serve both to explore and to elucidate lex scriptoria.

First warning. You should stop reading.

OK, you should probably stop reading now, as I continue to discuss my choice of lex scriptoria. Seriously, we’re going to dip down into the Latin.

In attempting to come up with the writer equivalent of lex mercatoria, I debated whether to use the latin base word scriptor or the base word auctor. Scriptor is most commonly translated as “writer” and auctor as “author”.

St. Bonaventure, a thirteenth century Franciscan monk, distinguished the words in this way:

There are four ways of making a book. Sometimes a man writes others’ words, adding nothing and changing nothing; and he is simply called a scribe [scriptor]. Sometimes a man writes others’ words, putting together passages that are not his own; and he is called a compiler [compilator]. Sometimes a man writes both others’ words and his own, but with others’ words in prime place and his own added only for purposes of clarification; and he is called not an author but a commentator [commentator]. Sometimes a man writes both his own words and others’, but with his own in prime place and others’ added only for purposes of confirmation; and he should be called an author [auctor].

This quote is frequently cited as quite extraordinary in how close it comes to capturing modern conceptions; however, a deeper reading of St. Bonaventure’s text reveals that his conceptions of writer and author were not as close to modern thought as this particular passage seems to convey. While the term scriptor is often equated to one who scribes, in other words as the person who literally writes things down, and auctor seems closer to author, neither term really captures the modern conception of either writer or author.

I eventually chose to use lex scriptoria instead lex auctoria for four reasons. First, I wanted a term that was closer to writer than author. Second, the Latin word auctor has a rather broad meaning and many different connotations and uses. In fact, it is more commonly used to mean “authority” or “power”. It is the source of the modern word “authority”. Third, at least one Latin scholar* I talked to said scriptor came closer to our modern conception than auctor. Finally, I just liked the sound of lex scriptoria better than lex auctoria.

Second warning. You should stop reading.

If you haven’t stopped reading by now, you really should. Don’t say I didn’t warn you.

So, having chosen to use scriptor instead of auctor, I was then left to create the correct phrase together with lex, which in case you have not deduced it yet from the context means law. So I dug back into Latin grammar. Both scriptor and auctor are third declension nouns. I decided to use the genitive case, which is fairly close to what we think of as a possessive form of nouns. This should have yielded an acceptable phrase for the “law of writers”. However, the genitive plural third declension ending is -um, yielding lex scriptorum. The problem with that construction was that the word for merchant was mercator, also a third declension noun. So why was the well known phrase lex mercatoria instead of lex mercatorum?

I eventually found the answer, confirmed by my expert*, by searching through all possible Latin endings until I found -ia listed as an adjectival form of nouns, including third declension nouns. Using the genitive/possessive was incorrect; I needed the adjectival form of the word.

Thus, lex scriptoria, the law of writers.

Just for the record, I did warn you to stop reading way back up there somewhere. You can’t blame me if you kept reading anyway.

*Dr. Gaffney, my eighth grade Latin teacher. Dr. Gaffney knows his stercore; you don’t question Dr. Gaffney.

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