Earlier this year I wrote about a lawsuit involving the Duke University Press and their dispute with the Social Science History Association over who would control the journal Social Science History. A decision from the trial court in North Carolina has now been issued in the case, so it seems like a good time to update the story.

In my earlier post, I summarized the facts of the dispute this way:

The SSHA has informed DUP that it wants to end its long-standing association and look for a different publisher for its flagship journal, Social Science History.  The Press, however, asserts that language in their original contract means that the SSHA can stop participating in the journal, but cannot remove it from the control of DUP
I also said that there was probably more to the case than met the eye, and the facts recounted in the District Court decision, which is a summary judgment based on the documents filed by both parties, seem to confirm that.
The District Court’s account of the facts of the dispute really helps explain that unusual language that is at the heart of the case — “Discontinue participation in publishing the journal.”  This is very odd language, and it turns out to come about because of an extraordinary agreement.  Apparently in 1996 the Social Science history Association felt they were unable to support the journal anymore, and Duke University Press agree to take over the financial responsibility.  DUP collected dues for the SSHA, took all the risks of publishing the journal, and returned 50% of the dues income to the SSHA each year.  The unusual language about withdrawal of participation comes from this 1996 agreement, which the SSHA decided it wanted to terminate in 2012, after soliciting new bids for publishing services from other academic publishers.
The other facts I found especially interesting involved the move by the SSHA to pressure Duke Press regarding its interpretation of the agreement, by contacting third parties like HighWire Press, which distributes Duke Press journals online, and demanding that they withhold payment of monies apparently due to DUP because of the conflict.  When the lawsuit was filed, the SSHA alleged that Duke Press had violated the agreement and infringed SSHA’s copyright by publishing an electronic version of the journal.
Apparently the full complaint included seven distinct claims made by the SSHA against Duke Press, and three counterclaims by the Press.  So disentangling the decision is difficult.  But it comes down to two key findings.
First, the court holds that the unusual language about withdrawing from participation must be interpreted in light of the agreement as a whole and the intent of the parties that it expresses.  While acknowledging that the interpretation offered by the Press is possible if the wording is read in isolation, overall the court determines that the ownership of the journal always remained with the SSHA.  So on that central issue — who owns the journal and has the right to determine its future — it is the Association rather than the Press, and the Court finds that the 1996 agreement was terminated as of Jan. 1, 2014.
The Association is therefore free to find another publisher, and I think my speculation that the journal will move to a large commercial press that will return higher profits to the Association will be justified.  I am very confident that we will see a significant hike in the cost of Social Science History.
The other important holding in this decision is that Duke Press was not in breach of contract or committing copyright infringement when it published the journal electronically. The court holds that authorization for such publication, while not explicitly included by the 1996 agreement, “is implied by the plain terms of the agreement and is evidenced by the actions of the parties.”  Specifically, the SSHA knew about electronic publication for years, but only objected to it when its efforts to terminate the agreement led to conflict.  It was the SSHA, the court finds, that breached the agreement by causing third parties to withhold funds due to DUP, and the court orders the SSHA to relinquish all claim to those monies.
This case seems both unusual and unfortunate to me.  It is unusual because the specific circumstances that led to the conflict are unlikely to be repeated; it does not set any precedent that we all must now be cognizant of.  It is unfortunate, first, because it pitted two venerable and respected academic organizations against each other.  And even more disturbing is that this is as an illustration of the baleful effects that can result from the large amounts of money that commercial publishing extracts from the academy, and the temptation to get in on the profits.
 

By now, most people know about the macaque monkeys that took pictures of themselves in the Indonesian jungle, and the controversy over who, if anyone, owns a copyright in the resulting pictures.  The events actually took place several years ago, but the popular news media has recently picked up the story because of threats by the photographer whose cameras were used, David Slater, to sue Wikipedia if the photographs, which Slater says are his intellectual property, are not taken down.  Wikipedia refused his take down request, and the story has gone viral.  I know a copyright story has penetrated into popular culture when I am asked about it at home, over the dinner table!

la-fg-british-photographer-monkey-selfie-20140-001There has been so much commentary, including an impassioned defense of the rights of monkey artists, that I am hesitant to wade into the fray.  But I think there are some lessons we can learn from both the story and people’s reaction to it; there is an opportunity here to remind ourselves of some basic principles about copyright law.

So let my offer two comments about the controversy itself, and two comments about the public reaction to it.

First — cards on the table — I am inclined to believe that these photos do not have any copyright protection because they lack any element of human agency.  The fundamental principle of copyright law, stated very early in the U.S. law, is that copyright protects “works of authorship.”  And although I never really thought the idea would be challenged, I think authorship implies human agency.  There must be a spark of creative, a decision to create a work, for something to be a work of authorship, and these photos do not have that.  The story has shifted a bit over time, but it does not appear that Mr. Slater gave his cameras to the monkeys deliberately.  Even if he did, that could hardly be called a creative decision.  He had no control over what they did with the cameras; they were as likely to smash them on the ground as to take pictures.

In the well-known Feist decision about the white pages of phone books, the Supreme Court discussed the idea of a work of authorship, and told us that mere hard work — sweat of the brow, as they said — does not by itself earn copyright protection.  A work of authorship must be original in the sense of not copied, but it also must have a spark of human creativity.  It need not be much, but some human decision is required.

By the way, the Feist decision is a roadmap to why Mr. Slater’s arguments about the money and effort that went into his photo-taking trip to Indonesia do not succeed in convincing me that he should have a copyright in these specific photos.  His other argument, that the monkeys stood in the shoes of a hired assistant, such that Mr. Slater should own the copyright in these photos as the “employer,” also fails, if it were ever seriously proposed. For one to be an independent contractor, human agency is again required.  In U.S. law, there must be an explicit agreement before any copyrighted work created by an contractor could be considered work for hire.  And monkeys do not have legal capacity to enter into a contract.  This is a legal point; no matter how smart other creatures are or the degree to which humans should recognize animal rights, the law, including copyright and contract, deals with relationships between human beings.

Human relations are the foundation of my other legal point about this situation.  We need to remember that copyright has a specific incentive purpose; it is designed to reward creators so that they will continue to create.  The law grants a government-enforced monopoly so that authors and other creators can make enough money to support their creative efforts.  And this justification completely fails when the creator is not a participant in human society.  Granting a copyright in a monkey-taken photograph would be a mockery of the incentive purpose of the law.

Mr. Slater seems to argue the incentive purpose of copyright when he asserts that it takes a lot of hard work and investment to be a photographer, and only a few of the many photos he takes will make any money.  All true, I am sure, but not relevant.  This is not a photo that he took, and it does not meet the standard of a work of authorship eligible for the peculiar legal structure we humans call copyright.  Many reactions to this story have focused on the idea that it is somehow unfair to deny Mr. Slater profit from the photo.  But copyright law is not about fairness, nor does it exist to reward industry or protect an investment.  Laws are passed for many purposes, and fairness is often well down on the list of reasons.  It is silly to expect to be able to use copyright to leverage some result considered “fair” in every situation that involves an (apparently) creative work.

My final observation about the reactions this story has provoked is actually eloquently made by Mike Masnick of TechDirt when he writes about “How that monkey selfie reveals the dangerous belief that every bit of culture must be owned.”  It is curious to see how uncomfortable many people are with the idea that no one at all owns these photos; that they are therefore the property of everyone.  Perhaps it is the unfortunate influence of the big content industries that makes some people uncomfortable with the idea of the public domain.  One of the early articles in this new round of media coverage asked its readers to vote on who owned the copyright in the photo.  Most voters split between Mr. Slater and the monkey, with less than 17% being willing to assert that no one owned it, it was in the public domain.  And apparently Wikipedia has decided to let the public vote on continuing to make the photo available.

Maybe the real lesson we should take from this silliness is that the public domain is real, and it is important.  Much of human culture would not have been possible without free access to our shared literary and artistic heritage.  The U.S. Constitution builds a public domain in to the very words by which it gives Congress the power to pass copyright laws, by requiring that those rights be “for a limited time.”  We cannot have copyright without a public domain; to attempt that would be cultural suicide.  So we need to learn not just to accept the public domain, but to celebrate it.  Perhaps that is why the monkey is smiling,

 

Apology

On June 9, 2014 By