Category Archives: Copyright Information Notes

An amusing chance to review some key ideas

There are probably many readers out there who know who Vanessa Hudgens is.  I did not, until I saw some blog posts reporting on her ongoing lawsuit against website owners who apparently posted nude photos of the actress and singer without her permission; see this report (without the pictures) on the TechDirt site.  Not, I admit, a serious issue of scholarly communications, but it does offer a chance to review some key points about copyright law about which there seem to always be questions and confusion.

First, the subject of a photograph does not have a copyright claim in the picture.  As the post linked to above points out, this has some counter-intuitive results.  One of the best photos of my wife and I together taken in recent years was snapped by a stranger we met in Istanbul who asked me to take a picture of he and his new bride and then returned the favor.  Oddly, he has a copyright claim in photo on my wife and I while I would have a claim in the picture of him, on his camera.  This is a result of the automatic nature of copyright protection, which showers down on a creator as he or she creates.  No such right in copyright accrues to the person whose picture is taken.  In the case of Ms. Hudgens, who is suing for copyright infringement, the ability to make that claim depends on the asserted fact that she took the photos herself, using a cellphone camera.  Were they taken by another person, Ms. Hudgens would not have any copyright claim.

This brings us to the need to distinguish copyrights, which are granted and enforced by federal law, from a right of publicity, which is a state law claim.  Merely as the subject of these photos, Hudgens might still have a claim that her right of publicity has been infringed, even if she had no copyright claim.  There could be a dispute about whether posting these pictures to a website was a commercial use, which is usually necessary to trigger the right of publicity, but I suspect that the website sells advertising and expected the photos to drive up both hits and revenues.  So posting the pictures might well have been the kind of use that would violate Vanessa’s right to control commercial use of her image (as well as other privacy rights, perhaps).

This need to distinguish between the owner of a copyright interest in a photograph (the photographer) and the owner of the publicity right (usually the subject) is the first lesson we can tease out of this case.

There are other ways a subject might get a copyright interest in a photograph, by the way.  First, the photo might be a work made for hire.  In that case, the employer owns the copyright from the start, and the employer might well also be the subject of the photo.  But just paying for a photograph does not make it a work for hire; the photographer must either be a regular employee of the employer/subject or an independent contractor who explicitly agrees in writing that the work will be a work for hire.  Alternatively, the photo might be a derivative work based on a copyrighted work that is part of its subject.  Suppose an artist poses in front of one of her paintings, or that Vanessa Hudgens had been wearing a dress she had designed herself (clearly counter-factual).  In those cases, the subject would have a copyright interest in the photo because of the derivative representation of an original work.

Finally, we can also take from this case a reminder about the role of registration in copyright protection.  The blog post notes that it is “odd” that these photos are registered with the Copyright Office if they really were private self-portraits, as claimed.  Not really.  We should remember that registration is not required for protection — copyright is bestowed automatically as soon as the pictures were snapped — but it is required to bring an infringement action into court.  Thus it is perfectly possible to hold a copyright, have it infringed, then go and register that right before bringing a lawsuit.  In fact, a quick review of the Copyright Office’s records suggests that this was the case here, since the registration data of the photos is October 2009.  If one follows that sequence of events, the range of damages is limited, since statutory damages are not available.  I suppose, however, that if copyright was registered before the infringement took place (and thus statutory damages are sought), one might well doubt the assertion that the photos were intended to be private.

Writing about reform

Every now and then, a law review article on copyright comes along that is so good that I feel I have to recommend it.  I am well aware that most of my readers are neither lawyers nor legal scholars, and the length and stilted format of law review articles can be off-putting.  But Professor Jessica Litman is more of a “known quantity” then many other copyright scholars, thanks to her wonderful 2001 book “Digital Copyright.”  It is her new article “Real Copyright Reform” that I now want to recommend for anyone interested in that broad topic.

There are lots of meaty and persuasive discussions of how to right the copyright ship in the US in this article, and it is hard to summarize all of Litman’s insights.  I really do hope that the whole article will be widely read, but I want to emphasize two broad points Litman makes for the purpose of this post.

First, Litman suggests that we abandon the division of copyright into seven distinct and separable rights.  This division serves us very poorly in the digital age, when all kinds of private uses that were uncontroversial for many years are suddenly contested online. Often the lines between performance, display, reproduction and distribution are simply impossible to maintain in the online environment that makes a new copy for nearly every use.  Instead of this increasingly dysfunctional division, Litman proposes a radically simple distinction between commercial exploitation and non-commercial enjoyment.

Besides the obvious simplification that such a new approach to copyright would accomplish, Litman points out another advantage to her proposal – it accords better with the general public’s intuitive understanding of what copyright is for and how it is supposed to work.  She correctly notes that a copyright law that is regarding as illegitimate and unenforceable by a majority of the public is of very little use.  This proposal for a simplified approach to protection and infringement, based on protecting only commercial exploitation and allowing non-commercial enjoyment, would serve the cause of copyright legitimacy.

The second broad proposal that I want to highlight is Litman’s suggestions for “reuniting creators with their copyrights.”  Copyright is frequently defended as an author’s right, but it seldom functions that way.  Nevertheless, both logical and economic reasoning suggest that greater efficiency could be had if copyright, or some copyright privileges, remained in authors’ hands.  To accomplish this goal, Litman suggests two significant reforms that would give creators more control over the exploitation of their works.  First, she suggests that we transform our largely illusory termination right (the right to terminate a transfer of copyright and reclaim the rights after 35 years if a complex procedure is followed) into a simpler process that would be available after only 15 years.  Second, she proposes that creators retain the right (“residual authority”) to license uses of their works even after a copyright transfer has been executed, “subject to a duty to account to her assignee(s).”  Such a move would simplify the licensing process, give some certainty to those who seek licensed uses, and put the residual licensing authority in the hands of the one most likely to permit and encourage creative reuse.

I have to finish this post with both a plug for my own forthcoming work and an expression of regret.  My own article on copyright reform, which is directed to a librarian audience, will be published in January 2010 in portal: Libraries and the Academy.  My article will be featured in the issue that marks the tenth anniversary of the journal, and I am very honored to be given that position.  But I also wish I had had the advantage of reading Litman’s article as I wrote my own.  Several of my suggestions for how to “renew” copyright focus on returning control to creators, and Litman has done a superb job of both defending the rationality of such reforms and thinking through some creative ways to get there.  I have no choice but to resort to that old complaint, “I wish I had said that.”

By the way, I will make a copy of my article available on this site as soon as it is published, in keeping with my contractual rights and obligations.

New (and not so new) resources

I am delighted to be able to link to a whole new group of resource for understanding and teaching others about copyright law and user rights.  Since most of these resources are video, they offer a nice supplement to the text resources I have listed here and here.

First, because it is the most general, is this new web site called “Teaching Copyright” from the Electronic Frontier Foundation.  This is a full-scale online curriculum designed to teach students about copyright,  It is intentionally offered to counter some of the educational efforts of the music and movie industries, which tend to focus heavily on what is not allow and try to avoid mentioning fair use or other exceptions that benefit users and support new creativity.

Second is what I like to call the most boring seven minutes on YouTube.  I realize that there is great competition for that honor, but this video in which I discuss the copyright and privacy issues involved in recording campus lectures and classes for Internet distribution surely has a claim.  It was made at the request of the Duke Office of News and Communications, and I have reason to hope it is helpful, even if it is not exciting.  If viewers are seeking entertainment after listening to me drone through the rights issues they need to consider, it is worth while looking around at the other videos on the Duke Libraries YouTube channel; many are much more exciting.

Next is this video from JISC on Intellectual Property Rights in Web 2.0 world.  It is a cute, colorful and nicely detailed discussion of rights and permissions issues that need to be considered as one creates new content for the web, and it points to an “online diagnostic tool” that will walk one through the issues in greater detail.  One warning, however, is that because this video and diagnostic tool are created in reference to UK law, where there is no fair use provision, their suggestions for when permission is needed must be reconsidered by US citizen in the light of our fair use provision.  Nevertheless, this is a helpful way of evaluating the issues and the various strands of rights that have to be considered, even if the conclusions will seem too strict to Americans.

The antidote to JISC’s lack of reference to fair use is this final video from the Center for Social Media on Fair Use and Online Video.  The Center has been a great champion of fair use through its work to create best practices documents to guide filmmakes and teachers of media literacy.  Now this video, and the accompanying best practices that it refers to, make the process of figuring out how and when fair use applies to allow a use without permission from the rights holder both clearer and rather entertaining.  This, and all of the resources mentioned above, are additional tools for the ongoin effort to clarify copyright for our students, staff and faculty; it is nice to be able to point to such a array of different, and amusing, media

Sorting out exceptions

A couple of recent issues that have crossed my desk have drawn my attention to an aspect of copyright law that has the potential to be very confusing. Many people recognize that copyright works by granting a bundle of exclusive rights to a copyright holder for a limited time, then defining a long series of exceptions to those exclusive rights so that the rights holder’s control is balanced with opportunities to use previous works in the creation of new intellectual content. The difficulty that often arises is in recognizing which exceptions apply to which rights and, therefore, to which situations.

Most of the copyright exceptions are exceptions to a specific right or rights within the copyright bundle. If an activity implicates other rights than the one(s) to which the exception applies, the user should not rely on that exception. The copyright bundle consists of five basic rights – reproduction, distribution, public performance, public display, and the making of derivative works. The copyright holder has the exclusive right to authorize or deny these activities UNLESS an exception applies. So let’s look a couple of examples and see how the exceptions apply to certain rights in the bundle but not to others.

The face-to-face teaching exception is familiar to most teachers who want, for example, to show a film in their classrooms; it allows performances as long as the copy that is screened is legally made. This is an exception to the performance right (and display right, in the case of art slides, for instance), but not to the other rights in the copyright bundle. If the teacher want to transfer the film from VHS to DVD (thus making a copy and implicating the reproduction right), or wants to hand out those DVDs to every student (implicating the distribution right), or is making a compilation of film clips (implicating the derivative works right), the face-to-face teaching exception, by itself, will not authorize those activities. Other exceptions may apply – the format conversion and the compilation of clips are both good candidates for fair use – but it is important to recognize the limits of the face-to-face performance exception and recognize that other justifications must have to come into play.

I recently responded to a question about using an ELMO projector to project the pictures from a childrens’ book for a library’s reading time. Part of the “first sale” exception (section 109(c)) covers this activity nicely; it is written to allow just this kind of display of a legally obtained work. But it does not cover an almost identical inquiry about scanning the same pictures into PowerPoint for display. Why not? Because an ELMO does not make a copy of a work, while a scanner does. The 109 exception allows display but does not authorize reproduction. Again, other exceptions may allow the PowerPoint projection, but they must be exceptions that permit reproduction in addition to display.

Applying copyright exceptions requires attention to exactly which rights any given exception applies to, as well as an awareness of how certain technologies function vis-à-vis the different rights included in the copyright bundle. And most important, an awareness of the limitations inherent in each of these exceptions reminds us how important fair use is. Fair use is the only exception in our copyright law that is not limited in one way or another to specific rights; when it applies, it can provide an exception to any of the copyrights. In the “Pretty Women” case alone, fair use provided an exception to the reproduction, distribution, performance and derivative works rights. It is precisely because fair use is so flexible that it is vitally important in education; in several of the cases suggested above, where other exceptions have reached their limits, it is fair use, applied carefully and thoughtfully, which may allow the activity.

Copyright in laws

While it could be said that trademark and patent are close cousins to copyright law, there is no such thing as copyright’s in-laws.  The real question is, should there be copyright in laws?

Most people know at least vaguely that government works in the US are not subject to copyright protection.  Of course, nothing is ever that simple.  First, section 105 of the copyright law says that there is no copyright protection in works of the United States government, meaning only works created wholly by government employees in the course of their employment are unprotected; works created by others on behalf of the govenrnment may still have copyright (as I noted a few days ago here).  Second, section 105 says there is no copyright in works of the United States government, meaning that the law is silent about works created by state and local governments.  And that, apparently, is the rub.

Some time ago, the state of Oregon tried to assert that it held copyright in its state code of laws.  After a brief skirmish with some advocates of open government, Oregon backed down from this claim, saying that, at least, it would not enforce any claim it had.

Now comes news that the same person who took on Oregon has been told to stop posting the legal code of the State of California — there are reports from Slashdot here, Techdirt here (with lots of generally unenlighting comments), and the Santa Rosa Press-Democrat here.

The argument against states and local governments asserting copyright in their laws and regulations is pretty straightforward — people should be able to access the rules of communal living that they are expected to follow.  California, on the other hand, has an interesting reason for making its copyright claim; the $800,000 it raises by selling print copies and digital access to its state code benefits the California taxpayer.  And no matter what our vague intuitions might tell us, the federal copyright law does not prevent such a claim.

In fact, copyright claims even in national laws are not unusual; most countries with roots in the British empire, other than the US, have some version of “Crown Copyright.”  But in the United States, at least, it is clear that the Copyright Office does not look kindly on these claims for protection in state and local laws, even if they are not excluded by statute.  The Compendium of Copyright Office Practices informs examiners in the Office that:

Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments.

So the Copyright Office would decline to register such works as a matter of public policy, which would complicate any attempt by Oregon or California to sue to enforce the copyright claim.  It also speaks volumes about the claim that copyright claims in public laws are intended to serve the interests of the public themselves; the Copyright Office apparently doesn’t buy it.

The bottom line here is that anyone relying on the absence of copyright in government works has to be careful.  Contractors who work for the government but are not federal employees may hold copyright even in US works, and the possibility of claims by state and local governments is very real indeed.

Copyright use case on a Grecian Urn

A colleague recently asked my opinion about an interesting question.  Would there be any copyright interest held by a museum that was displaying a classical vase for the first time?  The root of the question was the idea that if the museum was displaying an object that had recently been unearthed (quite literally), it might be said to be publishing a previously unpublished work.

My opinion was primarily based on the inapplicability of the terms published and unpublished to this situation, but the question offers a broader opportunity to review an aspect of copyright law that seems to confuse a great many people.

One of the characteristics of intellectual property rights ownership is that it is entirely independent from the ownership of a physical object that embodies intellectual property.  If I purchase a painting by a contemporary artist, I do not automatically get the intellectual property rights — the right to make copies or to distribute those copies, for example — along with the ownership of the object; I must contract for the transfer of the intellectual property rights, if I can, separately from the purchase of the object.

Likewise, owning an object in the public domain, like a classical vase, does not create any intellectual property rights.  Simply by owning and displaying the vase the museum does not gain a copyright interest where there was no such interest before.

Displaying the vase will not have any affect on the nonexistence of copyright and probably would not meet the (vague) definition of publication.  In any case, publication no longer makes much difference under our law.  By current U.S. standards, an anonymous, unpublished work is protected for 120 years from creation and an anonymous work that is considered published would be protected for 95 years from creation; in either scenario, an object from classical antiquity would be well past any possible copyright protection.

3 quick caveats to this point:

1.  A photograph of the vase could well have copyright protection, if it was sufficiently original to vest copyright in the photographer.  Artistic decisions about lighting, angle, exposure and such probably do invest a photograph of a 3D object with the requisite level of originality.
2.  Museums often charge for images of public domain objects in their collections.  Even when the images do not have sufficient, separable originality to provide copyright protection, such charges can be based on the ability of the museum to restrict access to the unique physical object.  For this reason many museums prohibit photography, in order to be the sole source of images of a public domain object on display.
3.  There many be restrictions on the ownership of a vase from classical antiquity based on laws in the country of origin about protecting that country’s cultural patrimony, as well as international treaty obligations to which the US is a party.

More generally, this question is a variation of one I hear quite often, about whether a republication of a public domain text or image somehow revives a copyright interest in that work.  Except for a small window of unpublished works that were created before 1978 and then published during the five years between 1997 and 2003, the answer is always no, not if the regular term of copyright protection has run or the work is otherwise in the public domain.

Copyright FAQ for government works.

There is a nice website, just updated in August, that addresses a great many copyright questions as they relate to works created by the U.S. federal government, under contract with the government, or using government funding.  The site is created by CENDI (the Commerce, Energy, NASA, Defense Information Managers Group), and also provides brief answers to more general copyright questions under the categories of “Glossary of Terms,” “Copyright Basics,” and Use of Copyrighted Works.”

For scholarly authors, however, the biggest value of the site is the section answering questions about copyright in works created under a federal grant.  As the website explains, copyright in works created using government grant money does not automatically belong to the government, but contract terms may place some restrictions on the use of those rights by the author.  This is exactly the case with the NIH Public Access policy, where copyright is owned by the author of each article that is based on funded research, but it is subject to a contractual requirement that a non-exclusive license be given to the NIH for inclusion of the work in PubMed Central.

Also, the site offers some guidance about using government works, an issue that often arises for scholars around everything from government survey maps to census data to photographs taken by active military personnel.  This is not really the place to gain all of one’s knowledge about copyright, but it is an excellent source for understanding the complexities of using government works and creating works under various agreements with the government.

E-textbooks: the state of play

As the new school year begins there has been lots of reporting about E-textbooks, and the welter of stories offers an opportunity to assess the overall state of play.

This story from Inside Higher Ed outlines some of the “next steps” for E-texts, as well as the “remaining obstacles,” which are substantial. The article focuses most of its attention on two initiatives – a highly speculative report that Amazon wants to introduce E-texts for its Kindle e-book reader, and a description of the progress being made by CourseSmart in partnering with higher education. It is worth looking at these two projects, along with some other business models for e-texts, in light of some recently articulated needs and concerns.

A recent study done by a coalition of student groups expresses some doubts about digital textbooks that are worth considering as we look at different possible business models. The report raises three potential problems with digital versions: their alleged failure to reduce costs, limitations on how much of an e-text a student is allowed to print, and the short duration of access provided by some licensing arrangements. These latter two concerns, obviously, support the contention that print textbooks are still serving student needs better than e-texts, especially if the digital versions are nor significantly less expensive. To these concerns we might add one more – students like to be able to highlight and annotate textbooks, and digital versions that do not support this activity will be disfavored.

So how do the different business models fare in addressing these concerns?

One model is simply the distribution of electronic versions of traditional textbooks by traditional publishers. This seems like the least promising of the models, since it likely solves none of the issues raised by the student groups. It is interesting that the representative of traditional publishers quoted in the Inside higher Ed story made no reference at all to cost concerns but stressed the potential for e-texts to shut down the market for used textbooks. Unsurprisingly, the focus here is on preventing competition and protecting income, not serving the needs of the student-consumers.

CourseSmart offers a business model that is very little different from that the traditional publishers might undertake themselves. There is some dispute about the issue of cost, however, with CourseSmart arguing not only that its digital versions of traditional textbooks are significantly cheaper, but that they remain so even when the income that students might usually expect by reselling their print texts is taken into account. It remains the case that that lower payment only purchases temporary access for the students and a restricted ability to print. Nevertheless, CourseSmart has been successful in arranging partnerships with San Diego State University and the state university system in Ohio, so it will be worth watching to see how those experiments develop, particularly in regard to student usage and satisfaction.

Amazon’s Kindle is yet another possibility for distributing e-texts. We know very little about how such texts would be priced or what features they would have, but we do know that the desire of students to be able to print would not be fulfilled. This is an important issue for students, apparently, since the student report on e-texts found that 60% of students surveyed would be willing to pay for a low-cost print copy of a textbook even if a free digital version was available to them.

This latter fact is precisely what Flat World Publishing is counting on with their plan to make free digital textbooks available and also sell print-on-demand copies to those who want a paper version. As I described this model a few weeks ago, Flat World is hoping to show that over the long-term, print on demand can prove a sustainable business model. Since this accords better with the expressed needs of student users than any of the above models, they might just be right.

The last model for distributing digital textbooks, one often overlooked in the debates (although endorsed by the student report mentioned above) but given some attention in this article from the LA Times, is open-access. Frustrated faculty members are increasingly considering creating digital textbooks that they will distribute for free. Supporting such work, with grants of up to $50,000, is another part of the initiative undertaken by the university system in Ohio. Ohio has long been a leader in supporting libraries in higher education, and this support for open access textbook offers a new avenue for leadership. The real “costs” we should be considering when we discuss e-texts ainclude reasonable support for the work of creating such resources, as well as credit for the scholarly product of that work when tenure reviews come around. So much of the expense of textbooks comes from the profit claimed by the “middlemen” who distribute them that real efforts to reduce the cost of education must focus on ways to encourage in-house creation of digital texts (which is little different from how textbooks have always been written) and to distribute them directly to students, as the Internet now makes possible.

New tools for recording copyrights

Several new tools have recently become available to make copyright record keeping and searching somewhat easier, although it still is not what could be called simple. Perhaps more importantly, another set of “best practices” in fair use has been issued by The Center for Social Media at American University, which offers the opportunity to comment on what these statements of best practices are and what they hope to accomplish.

The first new tool worth noting is from the Copyright Office itself — a new ingestion system that permits, for the first time, online registration of copyrights. It is hard to believe that this is the first time the Copyright Office has stepped away from paper forms, but that is the case. Starting July 1 it is possible to submit an online registration form and pay a fee that is $10 lower than the standard $45 cost of registration. The deposit requirement, which mandates that copies of a registered work be sent to the Library of Congress, will still have to be fulfilled by U.S. mail. It is also possible to track the status of a registration process that is done online. In addition to the online system, there is also a new paper form which uses barcodes to speed processing; the applicant fills out the form online, prints it off and mails it with the regular fee, but it does not take as long, in theory, for the Copyright Office to process. Since registration is still necessary before a copyright holder can file suit for infringement, a quicker registration system should help speed the judicial process a little. It will also make it easier to find copyright owners for works that are relatively new or newly registered.

Searching for copyright owners will become much more urgent if any version of the Orphan Works legislation pending before Congress actually is enacted, so copyright renewal records are as important, if not more important, than initial registrations. For new works, there is no doubt that copyright protection is in force unless there is some form of waiver like the Creative Commons license. But for those works most likely to be orphaned — works published between 1923 and 1963 — it will be vital to know if a copyright was renewed and, if so, by whom. Stanford University has offered a database of copyright renewal records for some time, and now there is a single XML file of both renewal records and original registration records from 1978 onwards available from Google. The digitization of these records required the efforts of several dedicated organizations, including Carnegie Mellon’s Universal Library Project and the Project Gutenberg.

Once this XML file became available, it did not take long for some copyright geeks (no offense intended; I am one myself) to design a simple interface to search these records. This site designed by a law student at Tulane University, under the direction of Professor Elizabeth Townsend Gard, should make it much easier to examine the Copyright Office records, and they are promising a more sophisticated tool by Fall. Whether or not we actually get orphan works legislation, it remains very difficult to find rights holders for lots of different kinds of works, and we must be grateful to all of the folks who have created these tools to make that important task a little bit easier. All of the sites, however, come with the warning that it is never certain, based on a search of these records, that a copyright was NOT registered or renewed; while they will tell us who did file for registration or renewal, it will remain something of a risk to use a work for which one does not find a record in these databases. That is why orphan works legislation is needed, so that a user who makes the effort to search these records and cannot, in good faith, find a rights holder is subjected to a much lesser risk than one who uses a work without any attempt to find out if copyright persists and by whom it is held.

See tomorrow’s post for discussion of a different kind of new tool — a statement of best practices for fair use in online video.

How “real” is intellectual property?

Toward the end of a session on copyright at the American Library Association’s annual conference last week, Carrie Russell, who is the Director of the ALA’s Program on Public Access to Information, exhorted the audience never to speak about copyright “ownership.” “Rights holders,” she said, do not own anything at all; holding IP rights is not the same as owning “real” property.

Based on the common understanding of ownership, it is easy to see what Carrie is getting at here, and to agree with it. There are fundamental differences between real property and intangible intellectual property. The most obvious is that borrowing or sharing intellectual property does not diminish the supply of it. And a rights holder loses his or her rights after a set period of time, the period set by the statutory grant of those rights. This makes it very clear that intellectual property rights are indeed a creature of law, created by legislative action and not by natural right.

But in truth, all property ownership, at least in the 500-year-old Anglo-American tradition, is similarly limited. It is a truism of property courses in law school that owning a piece of land means holding a bundle of rights, most importantly the right to exclude others from the property. But once real property ownership (as well as ownership of “chattel”) is seen as a bundle of rights (just as copyright is), the distinction between real and intellectual property seems less clear and telling. In a recent blog post about the Israeli copyright scholar Orit Fischman Afori, William Patry has occasion to quote the British philosopher Jeremy Bentham on this topic: “there is no such thing as natural property; it is entirely a creature of the law. … Property and law were born together, and would die together. Before the laws property did not exist; take away the laws, and property will be no more.” If real property is subject to the same limitations as intellectual property — each is a limited set of rights granted by statute rather than a permanent and uncompromisable outgrowth of natural law — it is interesting to ask what the real consequences of the analogy between owning IP and owning a car or a piece of land might be.

This analogy, of course, is a favorite of copyright “maximalists” who frequently complain, for example, that car thieves get thrown in jail while “pirates” of copyrighted music must be sued individually and at great cost to the rights holder. Many would like to view ownership of IP as a kind of “allodial,” or absolute, ownership, and would be surprised to learn that no ownership under our system of law derived from feudalism is actually so absolute. All ownership is subject to limitations imposed by law to achieve a fair balance between exclusive possession and socially beneficial use. If maximalists got their way and IP ownership was really treated just like owning real estate, they might regret what they wished for.

Real property ownership is, after all, subject to lots of limitations. Zoning laws, for example, place strict limits on the use of particular parcels of land; I cannot open a law office in my garage in the neighborhood in which I live because it is zoned for residential use only. Not really very different from all those restrictions on the exercise of copyright found in sections 107-122 of Title 17. And in the world of both real and personal property, the “doctrine of first sale” is virtually absolute; the law looks very suspiciously on any attempt to restrict the “free alienability” of land and often will not enforce such restrictions. IP owners who have recently tried to attack first sale in several court cases would not benefit much if the analogy with real property were strictly applied. Finally, property rights in the bundle that land owners get can be lost if they are not exercised. If I occupy a piece of land for a set period of time — 15 years in many states — and the owner makes no attempt to eject me, I will become the new owner of that land. Imagine how our orphan works problem would diminish if we applied that same principle to copyrights. On this score, copyright owners, whose rights persist for life plus 70 years whether they exercise them or not, are much better off than are those who own land. A copyright holder can choose to exercise their exclusive rights in one case, then ignore other infringements for many years before electing to enforce their rights again; a landowner does not have that luxury.

The relationship between real property ownership and the same concept regarding intellectual property is complex, but both are bundles of rights that are subject to many limitations and exceptions in statute and in common law. Neither copyright maximalists nor those who advocate for more limited IP rights have the argument all their own way when the analogy with land is invoked, but especially for the copyright owner who asserts that his or her rights should be treated just the way real property ownership is treated the message is ‘be careful what you wish for.”