[1524] in Public-Access_Computer_Systems_Forum
copyright misuse
daemon@ATHENA.MIT.EDU (MJENSEN@charlie.usd.edu)
Mon Oct 19 17:05:59 1992
Date: Mon, 19 Oct 1992 15:29:08 CDT
Reply-To: Public-Access Computer Systems Forum <PACS-L%UHUPVM1.BITNET@mitvma.mit.edu>
From: MJENSEN@charlie.usd.edu
To: Multiple recipients of list PACS-L <PACS-L%UHUPVM1.BITNET@mitvma.mit.edu>
----------------------------Original message----------------------------
I took the liberty of asking an attorney with whom I have been discussing
copyright misuse to respond to a recent posting concerning a very
strict copyright notice that someone posted as having been used on
library materials recently. Here is his response.
From: "Charles B. Kramer, Esq." <72600.2026@CompuServe.COM>
> What follows is the text of a card that was attached to a
> package of materials received at their library this week:
> <<To our valued customers: Each year, the [Center]... invests
> an enormous amount of time, effort, and money into updating and
> improving the [series].... Each year, we also lose far too
> much time and money in dealing with copyright violations....
> No one may make copies-- for *any* reason or *any* purpose--
> without our permission [emphasis in original]. When you open
> this package, you acknowledge our rights under federal law (17
> USC sec106) and are bound by that law not to make photocopies
> of any of these [series]. Also, you may not use any text in any
> way that involves unauthorized reproduction....>>
> As this publication would be used primarily in an academic
> setting, sec107 specifies that copying for scholarship or
> research is not violation of federal law.
The quoted statement is such a gem, I've restated it almost in its
entirety. It purports to be a "reminder" of the publisher's
copyright rights, which raises 2 questions: does the statement
accurately describe the publisher's copyright rights? And if it
claims more power than those rights really provide, what are the
consequences?
> << No one may make copies for *any* reason or *any* purpose>>
> <<you may not use any text in any way that involves
> unauthorized reproduction.>>
This part of the statement overstates the publisher's copyright
rights. True, Section 106 does say a copyright owner has the
*exclusive* rights "to do and to authorize" the making of copies.
But since other parts of the Copyright Act permit copying in varying
degrees "notwithstanding Section 106", the statement is misleading at
best, and is arguably a deliberate misstatement.
So if you copy what the statute says you can copy, you can't be sued
for copyright infringement, no matter what the statement says. But
that doesn't mean you can't be sued -- the person who drafted the
statement was smarter than that.....
> <<When you open this package you acknowledge... you are bound>>
This is an attempt by the publisher to gain by contract what he does
not have by copyright. For an enforceable contract to exist, the
person to be bound by it must (among other things) have assented to
its terms. If you understand a contract and sign it, you've assented
to it. But assent can alternatively be found by behavior -- when you
nod "yes" to the lawnmower boys outside your window, for instance,
you've contracted with them to mow your lawn. Whether "opening
a package" is assent to the terms of a statement that is stuck on the
outside of it is a legally open question.
But let's say the statement creates an enforceable contract. If you
make a copy that's forbidden by the statement, but not forbidden by the
Copyright Act, you can't be sued for copyright infringement. But maybe
you can be sued for breach of contract -- by opening the package you
promised to not copy "at all" (so the argument goes), and by copying
anyway, you broke your promise.
I don't think such a contract would be enforceable, however, because
it's arguably "misuse" of a copyright. In general, misuse may be found
when copyright is claimed to provide the basis for control over a work
that copyright does not really provide. For instance, claiming
copyright royalties after a copyright has expired would likely be
misuse.
The copyright misuse doctrine raises a lot of issues -- courts
increasingly find the doctrine exists, mostly by analogy to the well
established patent misuse doctrine -- but they don't often find misuse
exists. But assuming the statement does constitute copyright misuse,
several things could be true:
[1] the contract's attempt to gain by contract what it can't get by
copyright would fail (this has something to do with "pre-emption" also);
[2] the work that the statement covers might *entirely* lose its
copyright protection -- misuse a copyright, means lose it.
[3] the misuse itself might constitute a wrong -- a "restraint of
trade".
> <<Each year, the [Center]... invests an enormous
> amount of time, effort, and money into updating
> and improving the... series.>>
In addition to using contract and copyright law to get control, this
part of the statement uses "misappropriation" theory. "Misappropria-
tion" is a property right --- the idea that if you do the work, someone
else should not unfairly get the benefit of it. This is unlikely to
work -- in the much discussed _Feist_ decision, the Supreme Court
clearly rejected "sweat" as a basis for copyright, and using
misappropriation theory to do the work of copyright fails for the same
reasons the contract theory fails.
- Charles
Charles B. Kramer
CIS: 72600,2026
From Internet: 72600.2026@compuserve.com
