Additionally, if a core reason that copyright has always been compatible with the First Amendment is that it is a property right, then perhaps a way out of the conflict between privacy and freedom of speech and the press is to conceive of privacy in the same way — as a property right. Certainly it is already on its way there, as the “right of publicity” in many jurisdictions already implicitly does so, since it provides control over unauthorized commercial use by others.

What follows are three approaches the outline some of the benefits of doing exactly this.

Dissolving the Inkblot: Privacy as Property Right

Unsurprisingly, this is an approach libertarian thinkers have already explored. In a 1993 report for the Cato Institute, Sheldon Richman argues for a vision of privacy “that derives privacy rights from a Lockean framework based on each person’s property in his own life, liberty, and estate.” Richman grounds his vision of the right to privacy as a property right embedded in the Constitution:

That the propertarian model of privacy has the full force of the Constitution behind it is evident in the purposes listed in the preamble to the Constitution, in the recurring express references to property, and in the protection of unenumerated rights in the Ninth Amendment.

He additionally argues that viewing privacy as property is supported by older case law as well:

[I]n Boyd v. United States (1886), a search and seizure case involving a businessman, Justice Joseph Bradley wrote that the constitutional guarantees securing people in their persons, houses, papers, and effects transcend the concrete case and “apply to all invasions on the part of government and its employes of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging in his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property.”

Richman argues that “propertarian privacy” provides a consistent philosophical and moral grounding for property rights that protects privacy without giving judges too much leeway:  ”To determine whether one has a right of privacy with respect to some act, a judge need only ask what the property rights are.” As a result, contraceptive use is protected through his right to privacy because “each party owns himself or herself. … The same is true … for persons who engage in consensual homosexual sodomy.” Child abuse — even in one’s own home — is not protected “because the child is a self-owner.” Abortion is generally protected because “the fetus comes into existence inside the body of a self-owner.” On the other hand, employers may ban smoking — even in an employee’s home — without violating their right to privacy because the “prospective employee can turn down the job.”

In regards to data privacy legislation, Richmond’s approach would generally not protect privacy unless contractual obligations were violated (this might be seen as protecting confidentiality):

A private firm compiles a computer data base on consumers in order to rent it to direct marketers. Privacy violation? Not if the information was originally provided freely by the consumers (or otherwise lawfully obtained) and all contractual restrictions are observed. But if information was given confidentially, divulgence should be actionable. To be sure, data can be misappropriated, stolen by computer hackers, or used in ways that violate contractual obligations. That is why there are criminal and civil courts.

The Property Rights Origins of Privacy Rights

In The Property Rights Origins of Privacy Rights, Mary Cholpecki explores the historical connections between property and privacy. She points to two English cases as examples of this. First, in Yovatt v. Winyard (1820), what I might call an early trade-secrets case, the court “extended property rights protections to cover personal secrets,” namely, secret formulas for medicines used by a competitor. Cholpecki writes:

Yovatt brings to light the interesting and important fact that “what we now call ‘unfair competition’ and ‘plagiarism’ and ‘privacy’ were all wrapped together, in Yovatt’s time, under the principle of ‘property.’” It was only later that these concepts were separated.

She then discusses Prince Albert v. Strange, a case from 1849 in which Strange is prohibited from selling copies of etchings he had catalogued for Prince Albert:

According to one commentator, the most significant aspect of this case and its underlying philosophy is that it rested on a right of privacy, which the court considered a type of property right. In fact, it appears that until 1890, no English court recognized the right to privacy independent of property rights.

Cholpecki blames Samuel Warren and Louis Brandeis’ 1890 law review article for “divorcing privacy from its historical and intellectual partner, property rights.” Because of this, she argues, in subsequent cases the courts have “muddled the parameters of the right and allowed critics to argue that the right to privacy does not exist in the Constitution.”

She sees hope in the 1977 case of Moore v. City of East Cleveland, where a plurality of justices united in the ruling, some of the basis of a right to privacy and some on the basis of property rights:

The Moore case illustrates the interconnectedness between privacy and property rights. Given the same set of facts, four members of the Court believed privacy rights were jeopardized, while another believed property rights were threatened. Ultimately, the two segments came together to protect the rights at stake. … The most enduring protection for both rights is to view each as indispensable to the other.

Privacy As Intellectual Property?

In “Privacy As Intellectual Property?,” Pamela Samuelson explores the potential benefits and pitfalls of adopting a property-based approach to privacy protections.

First, she writes, viewing data about oneself as private property matches an intuition many of us already have. Since people already have the legal right to exclude people from access (journals locked in a desk drawer, papers stored at home in a file cabinet, etc.), “they may have a sense that they have a property right in the data as well as a legal right to restrict access to it” (1130). Data protection laws reinforce this intuitive sense.

This intuitive sense of property persists even though ownership of data is not the core legal framework in American law for dealing with privacy: “Indeed, the traditional view in American law is that information as such cannot be owned by any person” (1131). Although property rights are involved with Fourth Amendment protections, it is not a property right in the information per se, but rather a property right against trespass. The Fifth Amendment (against self-incrimination) protects a liberty interest in a kind of privacy right, but it is not a property right. If a doctor reveals confidential medical information to a newspaper, a patient’s rights “would arise under contract or privacy law, not from the existence of any property rights in this information” (1131).

Samuelson suggests that granting individuals property rights in their own data might force companies to internalize the costs of privacy — if individuals retain property rights over their own information, even if gathered without their intervention, the companies would need to compensate them (and get permission) for the use by buying the rights, or forgo using the personal data. It would also have the side benefit of potentially increasing the quality of data collected, since individuals and companies would each have an incentive to make sure data is accurate (1133).

Perhaps most importantly, taking a property rights approach would allow market forces and market efficiencies handle privacy concerns, without neglecting the particular desires of individual people, and without extensive (and potentially expensive) government regulations (1135-36).

Conclusions

Both Cholpecki and Richmond write from a libertarian perspective, and both believe that connecting the right to privacy with property rights will helps unify conservative and liberal positions into one that can have positive outcomes for everyone. Samuelson approaches the issue from a critical perspective, but outlines many of the important benefits that a “privacy as property” approach might give — and notes that, especially as many American today dislike government-run anything, a system of privacy rights that leverages and extends existing property rules and regulations would likely achieve significant support.

"Property of the Hess Estate" by Flickr user Jason Eppink. CC BY-NC-SA 2.0.

In Copyright and the First Amendment: The Unexplored, Unbroken Historical Practice, Terry Hart does an excellent job of exploring why the First Amendment has never been held to interfere with the enforcement of copyright, including pre-publication injunctive relief. A few quick highlights:

• Until the late 1960s, the idea that there exists any tension between the First Amendment’s prohibition on government restrictions of expression and copyright law’s encouragement of expression was nearly nonexistent.
• There were some who noted, at the least, a prior lack of recognition of the potential conflict, as in this Columbia Law Review note from 1913 on “Freedom of the Press and the Injunction.”

The main reason Hart identifies as to why legal thinkers did not consider there to be a conflict?

The first reason is that legal thinkers primarily conceived of copyright as a property right. Property is on the same footing as life and liberty. Freedom of speech, or freedom of the press, ends where deprivation of property begins.

Hart points out that the earliest (1839) case — Brandreth v. Lance, from New York — ruling on the constitutional grounds of free speech noted the following when denying an injunction for potential libel:

There is, perhaps, but one instance in the books, of any judge having maintained the existence of a power in the court of chancery of restraining publications on any other ground, but that of property and copyright.

(Note: there is another key ground on which judges — including the Supreme Court — have said that injunctions can be granted in regards to copyright: the fact that copyright is granted in the Constitution itself. See New York Times v. U.S., from 1971.)

Brief from Planned Parenthood for Roe v. Wade

In 2009, I wrote about a California lawsuit against Westlaw and LexisNexis for violating copyright law by selling legal briefs of attorneys without their permission. I never heard what happened to that lawsuit, but now there’s another one, this time in New York, alleging similar infringements. The Wall Street Journal’s Law Blog writes:

Edward L. White, a Oklahoma City, Okla., lawyer, and Kenneth Elan, claim WestLaw and LexisNexis have engaged in “unabashed wholesale copying of thousands of copyright-protected works created by, and owned by, the attorneys and law firms who authored them” — namely publicly filed briefs, motions and other legal documents.
– Keep Your Hands off My Briefs: Lawyers Sue Westlaw, Lexis

In 2009, I thought that such a lawsuit had potential merit, although I maintained then — and continue to believe — that the public benefits more from allowing this kind of access. On the other hand, I remain concerned that such access is only available for a very high fee through LexisNexis and Westlaw. I would rather see public access to briefs filed in public courts. I wrote, “We are all better off if we can read them.”

Of course, such a “public good” standard is not the test for fair use, as American University’s IP blog points out when it goes through the actual four-factor test :

According to UCLA law professor Eugene Volokh the plaintiffs actually have a fairly decent argument because filing the briefs in court “doesn’t waive any copyright” which turns this into a murky fair use question with “no clear answer.” Fair use protection is detailed in Title 17 section 107 of the U.S. Code and stipulates that certain uses of protected materials are not infringement. These fair uses include criticism, reporting, and education. Determining fair use occurs by applying a four factor test the code provides.
– Goodbye to Online Research? Class Action Complaint Filed Against LexisNexis and Westlaw for Copyright Infringement

To summarize: educational use is best, but commercial gain is OK if it’s generally for the public good; creative works receive the highest protection, but briefs are at least partly creative in nature; the reselling of the full brief cuts against Westlaw and LexisNexis; and, finally, whether the reuse impacts the original market for the product — it’s likely, but arguable, whether that is true in this instance.

Remember that copyright does not exist to reward effort, but rather as an incentive to create original works, as Techdirt points out:

The purpose of copyright law is to encourage the sharing of this kind of information and no legal brief is created because of the copyright on it. It’s simply silly to think that a legal brief should be dealing with copyright because the purpose of copyright is to incentivize the creation of the work — and there’s clearly no need for copyright in this instance.
– Westlaw And Lexis-Nexis Sued AGAIN Over Claims That They’re Infringing On Copyrights Of Legal Filings Themselves

Hopefully we’ll hear more about where this lawsuit ends up.

Specifically, the Supreme Court ruled 5-2 against the old Charles River Bridge Company, saying that Massachusetts had not violated the federal constitution’s Contracts Clause — a victory, it was held at the time, for state’s rights (as was Dred Scott). Justice Taney, generally very conservative and pro-property rights (and incidentally in favor of preserving slavery, as abolition would deprive owners of property), ruled against the contracts claim of the private corporation in favor of the public good:

While the rights of private property are sacredly guarded, we must not forget that the community also have rights, and that the happiness and well-being of every citizen depends on their faithful preservation. Charles River Bridge, 36 U.S. at 548.

Taney aligned the “public good” with progress and technological improvements. Ruling in favor of the entrenched Charles River Bridge Corporation would mean that the country would “be thrown back to the improvements of the last century, and obliged to stand still.” Id. If an exclusive monopoly were upheld, then incumbent highway corporations would hold back development of new railroads and canals, which were booming as the new technologies of the nineteenth centuries.

New developments and new approaches had permitted a new corporation to build a new bridge at a lower cost — and to make it free within a few years of its opening, while still turning a profit for its investors. But in doing so, the profit-making potential of the old bridge was destroyed (although investors had already made back their initial investment multiple times over).

But hadn’t the old company taken a risk initially? Didn’t its investors deserve to reap their new profits because they had taken the risk initially? Wouldn’t setting a precedent that their state-granted monopoly could be limited later actually inhibit future investment?

If these questions all seem rather familiar in the 21st century, it’s because these are the same kinds of arguments advanced by patent and copyright holders today. Pharmaceutical companies want their patent monopolies to extend further, and argue that failing to grant a sufficient monopoly would inhibit development and investment. Music and movie companies argue that their copyright monopolies should extend even further than it does now — because otherwise creation and investment would suffer.

Taney said “no” to this argument in 1837. I’ll ask the obvious question, then: did this decision to limit a monopoly contract reduce investment and technological development in the nineteenth century? The (equally obvious) answer is, “no”: the nineteenth century gave us railroads, the telegraph, the telephone, and much, much more. If there’s anything we can learn from Taney’s 1837 decision, it’s that minimizing monopoly rights does not inhibit development — and, I think, the reverse is even more likely.

It’s a lesson we would do well to keep in mind when considering the length and extent of patent and copyright monopolies.

"Visible downgrading" by Alex Wellerstein. CC BY 2.0 license.

The concept of “privacy” — as in “the right to privacy“ — can be understood in a number of ways. This multitude of potential meanings and uses is partly why the concept is controversial, confusing, and perhaps even contradictory. Previously I have discussed the difference in perceptions of privacy in the 19th century, where the legal focus seemed to be more on “confidentiality” than what we have come to understand as “privacy” today. That is, the 19th century concern was with maintaining trust relationships between people rather than with protecting either secrecy or autonomy (although that is not to say that these were not valued).

Autonomy

This changed with the 1890 publication of the Samuel Warren and Louis Brandeis law review article called “The Right to Privacy.” In this article, Warren and Brandeis are actually concerned with something more akin to autonomy than secrecy: “from Greek autonomia, from autonomos  ‘having its own laws,’ from autos ‘self’ + nomos ‘law’” (from Apple’s dictionary app).  That is, allowing people to control their own self-identity, rather than allowing it to be exploited by (for example) yellow journalists. Secrecy, on the other hand, is about keeping something away from the knowledge of others. The concepts are related, but distinct and different, and require different legal approaches.

"Paparazzi" by Clément Seifert. CC BY-NC-SA 2.0 licensed.

The Warren and Brandeis article advocated for the protection of a person’s “inviolate personality” and the “fundamental right to be let alone.” They were not concerned with illegal government searches of private residences — or even the trespasses of journalists in private land — but rather with the publication and dissemination of information that, they believed, most properly belonged to a person. In other words, their approach was akin to a broad notion of copyright or “right of publicity,” because it proposed allowing people to control the publication of their own likeness (photos of themselves, for example). Such control was based on a kind of “moral right,” in a sense, to own one’s own self, or to be “autonomous.” The implications of a right to control the publication of information about one’s self has the potential to conflict with the First Amendment rights of others in a way that a right to privacy as secrecy might not.

In 1928, now a Supreme Court justice, Brandeis wrote in dissent in Olmstead v. U.S. that the right to privacy was the “right to be left alone — the most comprehensive of rights, and the right most valued by a free people.” Cornell’s Legal Information Institute explains that the right to privacy has thus “developed into a liberty of personal autonomy protected by the 14th amendment.” The focus on a “right to privacy” as “a liberty of personal autonomy” is why the Fourteenth Amendment (due process and equal protection), and not the Fourth Amendment (search and seizure), is often so important today when discussing privacy, and is the constitutional underpinning for key decisions like Roe v. Wade.

Secrecy

"Completely Tapped" by Byung Kyu Park. CC BY-SA 2.0 license.

A right to secrecy is most closely aligned with the Fourth Amendment (search and seizure) and with trespass, and less with the “penumbra” of due process or equal protection. A right to keep things secret is also about “inviolability” in some sense. Thus, in Olmstead, Brandeis could argue that a wiretap could intrude on a “right to privacy” — the “right to be let alone” — as part of a violation of the Fourth Amendment, even though no publication or dissemination had necessarily occurred. A right to autonomy, to protect one’s self, might well require a right to secrecy in a case involving wiretaps, but it has less value in protecting abortion rights, for example, where the real question is one of self-determination, not secrecy.

Approaching a right to secrecy legally, one might prosecute an overzealous journalist not for the publication of embarrassing information — and certainly not for photos taken in public places — but for a trespass involved in obtaining private letters. In some cases, the First Amendment might still be implicated (think of the Pentagon Papers), but the restraint on speech is much weaker when what is being restricted is not directly the publication of materials, but rather the manner in which they were obtained.

In this sense, then, data privacy laws — which Eugene Volokh, for example, has explained are in many ways in conflict with the First Amendment — might be more readily disentangled from that constitutional problem if they are realigned with traditional laws against trespass. The law, then, would not be focused on preventing publication (although that might be an issue still, and might still have First Amendment implications), but rather on punishing transgressions or trespasses.

Copyright law is often approached in terms of debates over competing interpretations of the law: should copyright be used to protect the author’s freedom, or to encourage the public distribution of culture and information, or to turn intellectual products into marketplace commodities, or to serve the interests of corporate publishers and distributors?

He then explains that, at least in the Western–and perhaps especially in the American–tradition, “copyright is the enactment of the dream that the disparate goals and values of individual creative freedom, commerce, and informational dissemination can be reconciled in law.”

In the United States, copyright has always served a functional purpose:

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  (Article I, Section 8, Clause 8 of the United States Constitution).

Drawing on this, Streeter writes that:

From the beginning, therefore, copyright was understood more in functional than in formal or moral terms; the emphasis was more on copyright’s role in encouraging the distribution of culture and information than on its inherent justice.

American law depends on conceptual distinctions, particularly originality and the distinction between an idea and its expression, that are derived from the romantic image of authorship as an act of original creation whose uniqueness springs from and is defined in terms of the irreducible individuality of the writer.

But, Streeter points out, modern broadcast mediums–especially television, but also music, movies, and more–do not have individual “authors,” and yet our legal approaches to copyright still assume some notion of an individual author or creator.

One way the law has handled this is through the fictional “corporate person” who now owns copyrights and substitutes for individual creative humans. These large bureaucratic institutions now “create” most modern works, but still argue that consumers have a moral right to compensate them for their creation in a way that tends to invoke romantic authorship–and breaks down when the “creator” is a large multinational corporation.

Corporations have responded to create bureaucratic enforcement mechanisms, so-called “copyright collectives,” such as ASCAP and BMI. These groups create licensing arrangements that only roughly correspond to “actual” use or “actual” creators (and often strike me as rather reminiscent of a protection racket…).

New technologies that have emerged after Streeter’s book hold the potential for revolutionizing this relationship, although Amazon, Netflix, Hulu, Spotify, et. al. fundamentally do nothing about the problem of corporate content creation. They do, however, re-enable the possibility of individual creators (if such a thing really exists…) to escape the old bureaucratic confines and to more directly connect with consumers via mediators that can reduce the communications and collections overhead.

So is this really a revolution? Perhaps–but as I said, it does nothing about the major point of Streeter that much of today’s media has no individual creator at all. In such a case, these new technologies merely permit more efficient collection, cutting back on the number of “middlemen,” but don’t otherwise revolutionize anything at all.

Digital edition of "The Right to Privacy"

Part of the historical work I’ve been doing focuses on the history of privacy and the introduction of new technologies, like the telegraph. In terms of of the U.S. Constitution, I’ve been focused mostly on the Fourth Amendment (which regulates searches and seizures). However, the First Amendment‘s speech protections are also potentially implicated, especially when it comes to modern information privacy law — a point Eugene Volokh explored in his 2000 law review article, “Cyberspace and Privacy: A New Legal Paradigm?”

I am not going to as fully analyze the issue here, but I wanted to begin thinking about it. To do this, I’m going to think about Volokh’s points in relation to Samuel D. Warren and Louis D. Brandeis‘s 1890 law review article, “The Right to Privacy.” This highly influential piece advocated for “the fundamental right to be let alone.” But is it impossible to reconcile such a right with an equally compelling right to free speech?

Of course, the right to “free speech” is not an absolute right, and there are many constraints (yelling “fire” in a crowded theater is, of course, classic). But still, the requirement that the government “shall make no law … abridging the freedom of speech, or of the press” is explicitly written in the Constitution, whereas the “right to privacy” is part of its “penumbra.” So perhaps the debate is easier for originalists like Antonin Scalia, who can end the debate by asserting that the original meaning of the Constitution does not include a right to privacy, but it does include a free speech provision.

The Warren and Brandeis article attacks the new gossip columns and photographs made possible by new technologies of the era. They connect their argument for the protection of a person’s “inviolate personality” to the protections afforded, via copyright for example, to “personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form” (206).

Volokh quickly dispenses with arguments that copyright, despite its restrictions on speech, is itself barred by the First Amendment, primarily on the grounds that courts have not allowed “intellectual property owners the power to suppress facts” (1065, citing to Harper & Row v. Nation Enterprises). Thus, I may publish a cutting-edge exploration of new historical materials I spent years digging out of the archives and while you may not simply photocopy and redistribute my work, you can write your own work drawing on all the labor I spent bringing forth these new facts. (See also, “You do not get an ‘A for effort’ with copyright.”)

But do I have a right to prevent the publication of personal facts about me, however embarrassing they may be? (Remember, copyright protects my creative expression, not the bare facts themselves, so it’s no help here.) What about restrictions on publishing my criminal history? Or my video rental history? Or  my credit card purchasing history?

If I obtain these items via a contractual arrangement, Volokh says, there is no problem, because enforcing contractual restrictions on speech does not offend the Constitution. But what if I get them without agreeing to a contract? Can the government still prohibit their publication? Volokh says there is a problem here (1092-94).

Very often, free speech protections are analyzed under a “marketplace of ideas” paradigm. In this analysis, we need speech — and allowing it is good — because it contributes to our ability to make decisions, and the greater the marketplace, the better decisions we can make. Bad ideas are countered by more speech, not by restricting their entry into the marketplace.

My criminal history and credit card history are certainly good information to have if you are evaluating me for a job or elected office, so in a marketplace analysis, they shouldn’t be suppressed. But there is a realm of “non-public-concern” topics that can be restricted (accidental nudity, for example) — but Volokh suggests this is too slippery of a concept to function as an effective test (1094-95).

Government can regulate speech if there is a “compelling state interest” (1106). Is privacy protection sufficiently compelling? Relatedly, is the penumbra-derived right to privacy sufficient to counter free speech arguments?

Volokh argues that privacy rights are “statutory or common-law” derived, and are not “analogous to a constitutional right” (1108). Furthermore, the First Amendment only prevents government interference with speech, not private actions to interfere with it; thus, privacy rights might well only protect against government violations, not allow for government to regulate non-government interference with privacy.

Volokh attacks Warren and Brandeis most directly when he writes:

On the other hand, if the claim is that the ability of private parties to communicate personal information about others
by itself “destroy[s] individual dignity and integrity and emasculate[s] individual freedom and independence,” “deprive[s people] of [their] individuality,” makes it impossible for “intimate relationships [to] exist,” or denies that a person’s “existence is his own,” such a claim is simply false.

This is pretty close to the argument that Warren and Brandeis make when they attack gossip columns. But even if the claim is true, Volokh says restricting publication to protect this is unconstitutional:

Under current constitutional doctrine, the answer seems to be no. Though the Supreme Court has sometimes left open the door to the possibility of restricting truthful speech simply on those grounds, the general trend of the cases cuts against this: Even offensive, outrageous, disrespectful, and dignity-assaulting speech is constitutionally protected.

It seems to me pretty clear that Volokh does not agree with Warren and Brandeis. I still think there’s potential for an alternative approach that might allow for certain kinds of privacy protection without overly violating the U.S.’s very strong speech protections (note that this isn’t a problem generally in Europe, which permits much greater restrictions on speech when it serves as a protection against, for example, Nazism), but it’s not yet obvious to me what approach would be.

Related articles

• Knowingly False Statements of Fact and the First Amendment (volokh.com)

Image via CrunchBase

David Pogue writes about a new startup that’s trying to work around the limitations media companies have placed on movie providers like Netflix and Redbox:

At its California data center, Zediva has set up hundreds of DVD players. They’re automated, jukebox-style. You’re not just renting a movie; you’re actually taking control of the player that contains the movie you want. The DVD is simply sending you the audio and video signals, as if it were connected to your home with a really, really long cable.

via A Clever End Run Around the Movie-Streaming Gremlins – NYTimes.com.

Zediva seems pretty sure all this is OK under copyright law (“We’re confident that the law allows you to watch a DVD that you’ve rented,” said a company representative), but I thought I’d look a little deeper into the law. After all, the plan seems remarkably similar to an attempt by a hotel to do something similar for use of its guests. In On Command Video Corp. v. Columbia Pictures, 777 F. Supp. 787 (Dist. Court, ND California 1991), a federal court found that using a system of VCRs to play movies for guests violates copyright as a “public performance.” The hotel room itself is not a “public place,” but the transmission is to the public — and therefore infringing under 17 U.S.C. § 101.

On the other hand, in Columbia Pictures Industries, Inc. v. Professional Real Estate Inv., Inc., 866 F. 2d 278 (Court of Appeals, 9th Circuit 1989), the Court of Appeals held that renting videotapes in a hotel to guests to watch in their rooms is not a violation of copyright.

Similar to On Command, in Columbia Pictures Industries v. Redd Horne, 749 F. 2d 154 (Court of Appeals, 3rd Circuit 1984), the 3rd Circuit held that showing videotapes played on centrally located VCRs to patrons in private booths was a “public performance” because the booths were generally open to the public and was thus also infringing under 17 U.S.C. § 101.

Zediva’s system sends materials to private homes, not to a “public place.” This likely gets it out of the Redd Horne fact pattern. Nonetheless, Zediva does transmit to the public. Unfortunately, this does make it sound rather like On Command, so I would be very interested to hear details as to how Zediva’s situation is distinguishable, or why they should not fall under the same logic used in On Command.

Related articles

• Zediva’s Movie Rentals Are 50% Cheaper Than iTunes (techland.time.com)
• Crazy Zediva exploits copyright loophole to stream movies you can’t get online elsewhere (news.cnet.com)
• Is Zediva’s New-Release Movie Streaming Service Legal? (wired.com)

Since its codification in Britain in 1710, the length of copyright protection has continued to be extended, from an initial 14 years to today’s 70-120 or more years.

Before 1790

In Europe in the early fifteenth and sixteenth centuries, as printing began to spread, copyright only existed as a monopoly granted by royalty to specific printers to cover specific works. It was not a general rule of law that covered all written work, much less all printed texts. In England in the seventeenth century, the Stationer’s Company — a private organization, albeit one with government recognition — gained the absolute right to manage and grant the right to copy printed texts. The first recognizably modern version of copyright in England, and the one to which modern American copyright can trace its roots back, was the Statute of Anne, passed by the British Parliament in 1710.

In early modern France, royal decrees before the eighteenth century established the duration of copyright to last in perpetuity, at least until rights were sold to a publisher (which would then limit the duration). Remnants of this focus on authors can still be seen in the sense of the “droit d’autor” and artistic “moral rights.” Post-Revolution, rights were limited to the lifetime of an author plus 5-10 years. The notion of literature as public property at heart, but granted to people for a length of time, was entrenched in the system.

As of 1710, the Act granted monopoly rights to publishers for the period of 14 years, for the express purpose of encouraging “learned men to compose and write useful books.” This Act effectively created the legal category of the “public domain,” since once the 14 years expired, texts could be copied by anyone and belonged to no one (or to the public at large). The Lords confirmed the limited duration of copyright in Donaldson v. Beckett in 1774, a decision inherited in the United States as part of our common law (even though the Statute of Anne itself did not apply to the colonies).

1790: 28 years

In 1790 in the United States, the first Copyright Act of 1790 — closely modeled on the Statute of Anne — created a copyright term of 14 years from date of recording, along with the potential for renewal by surviving authors for another 14 years. Total protection, then, consisted of a maximum of 28 years.

1831: 42 years

In 1831, a revision to the Act extended the initial potential copyright period to 28 years, with the potential to extend it for another 14. The maximum thus became 42 years.

1909: 56 years

Image via Wikipedia

In 1909, Congress reformed copyright again, changing the duration to be an initial 28 years, followed by a possible extension of another 28. Total potential protection, then, was now 56 years.

1976: life + 50 or 75 years

The 1976 revision was, arguably, the most radical change to the law in 200 years. Copyright was changed to be the lifetime of an author plus 50 years, with works for hire (those that were commissioned or were produced at the behest of a corporation) protected for a total of 75 years. Fair use was codified specifically in statutory law at this time too, although the specifics of application were left to the courts. Much of the goal of this Act was to bring the United States in line with the rest of the world.

1998: life + 70 or 120/95 years

In 1998, the Copyright Term Extension Act extended the length copyright again, to the life of the author plus 70 years, or, when considering corporate “authors,” 120 years after creation or 95 years after publication, whichever is earlier. Additionally, this Act also covered works created in 1923 or later, applying the new durations to those works.

Related articles

• Copyright and Fair Use – Information & Library Services (umuc.edu)
• You do not get an “A for effort” with copyright

Copyright originally only applied to printed works, and though it has been extended to sound recordings, movies, and software, its protections have never yet covered fashion design. Copyright in the American tradition provides an incentive to encourage the creation of new works, with the goal of benefitting everyone by increasing the amount of creative works. Despite this lack of statutory incentive, the fashion industry has never lacked for creativity — but nonetheless, some still think fashion needs protection in order to be innovative:

On Aug. 5, Sen. Charles E. Schumer (D-N.Y.) introduced S.3728: The Innovative Design Protection and Piracy Prevention Act. He’s got 10 co-sponsors  —  including three Republicans  —  and a big idea: to extend copyright protections to the fashion industry, where none currently exist. That’s right: none. I  —  well, not I, but someone who can sew  —  can copy Vera Wang’s (extremely expensive) dress and sell it to you right now (for much less), and Wang can’t do a thing about it.

via In copycats vs. copyright, the knock-off wins from the Washington Post.

So if Sen. Schumer has to introduce a law to protect the fashion industry from fakes, how come knock-offs are already seized by police? The answer is that even though copyright doesn’t protect fashion, trademark does. Copyright gives a medium-term monopoly to creators, while provides much more limited protection — but lasts as long as the brand protects and uses its mark.

In short, it’s perfectly OK to copy a high-end purse, as long as you don’t copy the logo and brand of the designer. Copy all you want, but don’t pretend your copy is the real thing. The point of this — as with trademark generally — is to avoid confusing or misleading customers. From the business side, the point is to keep poor imitations from cheapening the investment in the brand.

Of course, it’s not always clear what’s merely a copy vs. what’s actually counterfeit, but that’s why we have lawyers!

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