Fifty-Five Years of Software Copyright

Greetings from INTA 2019 in Boston! It’s been a few months since a post, entirely my own fault of course, but today is a good day to bring readers something new – the Copyright Office announced 55 years ago today (March 19, 1964) that they would begin accepting registrations of software copyrights. This was of course an enormously consequential decision, and while it has been written about before, as far as I know a proper history of the era has yet to be written (Pam Samuelson’s article The Uneasy Case for Software Copyrights Revisited has a lot of useful material on the subject though). As such, I thought I’d provide a few aspects of the early story of software copyrights that some may not be aware of.

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An Archive of Patent Office Rules and Procedures

This isn’t really meant as a traditional post, but I’ve noticed that there isn’t one organized place to view older versions of the pamphlet issued by the Patent Office providing rules and procedures for filing patents and other interactions with the Patent Office. These rules are now housed within the CFR, and the Patent Office is now the USPTO, but it’s still useful to understand the rules for filing a patent when looking at an old patent. The bulk of these are from Hathitrust, but I’ve gone to the Library of Congress and elsewhere to digitize many of the older sets of rules not available online anywhere, in an effort to create a complete resource for people interested in the subject. This resource goes in hand with the list of copyright rules manuals I’ve previously posted.

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INS v. AP at 100 – feat. the oral argument

On December 23, 1918, the U.S. Supreme Court issued its decision in International News Service v. Associated Press, reported at
248 U.S. 215. The case involved the Hearst-owned International News Service, which had been barred from the front in World War 1 for what was perceived as unduly sympathetic reporting on the enemy. However, INS continued providing its news to west coast papers by reading stories from east papers served by the rival Associated Press and wiring their own rewritten stories cross-country. Although the war was over by December 1918, the broader implications of the legal claims lingered, and the Supreme Court held that copying of news stories was unfair competition even if there was no copyright infringement (since the stories were all fresh rewrites and only the facts were being copied). Justices Holmes and Brandeis both dissented.

The story of this case has been told before, most notably by Douglas Baird in his contribution to Intellectual Property Stories. However, what I believe will become the new standard history of this case, and of the many issues of legal protections for news more generally, is an upcoming book by Will Slauter, entitled “Who Owns the News,” coming out next month from Stanford University Press. I’ve copied the description of the book below, and I believe it will be mandatory reading for anyone who would be so moved to check out this blog.

You can’t copyright facts, but is news a category unto itself? Without legal protection for the “ownership” of news, what incentive does a news organization have to invest in producing quality journalism that serves the public good? This book explores the intertwined histories of journalism and copyright law in the United States and Great Britain, revealing how shifts in technology, government policy, and publishing strategy have shaped the media landscape.

Publishers have long sought to treat news as exclusive to protect their investments against copying or “free riding.” But over the centuries, arguments about the vital role of newspapers and the need for information to circulate have made it difficult to defend property rights in news. Beginning with the earliest printed news publications and ending with the Internet, Will Slauter traces these countervailing trends, offering a fresh perspective on debates about copyright and efforts to control the flow of news.

Book Page at Stanford University Press

As part of his research for his book, Will located the transcript of the oral argument before the U.S. Supreme Court a hundred years ago in the archives of the Associated Press. He’s graciously allowed me to share the transcript here, part of my project of locating pre-1955 transcripts of U.S. Supreme Court oral arguments. It’s fascinating to see the argument, which is very different from the style today – the advocates speak much more – and the justices ask many fewer questions. As far as I’m aware, almost no-one has been aware of the existence of this document, and it almost certainly hasn’t been shared before. Enjoy!

Thomasville v. Kaminstein – Copyright in Furniture

Recently, Brian Frye posted a picture to Instagram of a piece of furniture with a 1959 copyright notice.  I found this interesting but not entirely surprising, as Mazer v. Stein had come down a few years earlier and companies were presumably testing the boundaries of conceptual severability and design protection

I tried searching for the registration in the Catalog of Copyright Entries to no avail, but did find a tidbit in the Annual Report of the Register of Copyrights for 1969:

An action for declaratory judgment and
mandatory registration was filed on August 7,
1968, against the Register of Copyrights, in
the U.S. District Court for the District of
Columbia The suit, Thomasville Furniture
Industries, Inc. v. Kaminstein, Civil Action
No. 1959-68, concerned eight applications for
registration of claims to copyright in three-dimensional
designs applied to articles of furniture.
The Copyright Office had rejected the
claims on the grounds that the works revealed
nothing identifiable as “a work of art” within
the meaning of the copyright law. On September
26 the Department of Justice, on behalf
of the Register, filed an answer. On January 3,
1969, the case was brought to a close when the
plaintiff fled a stipulation dismissing the case
with prejudice.

With knowledge of the case in hand, I was able to get the case file from the National Archives.  It’s fairly short at 20 pages, and the interesting parts are the complaint and answer – and especially the copy of the letter denying the copyright registration.  In short, the Copyright Office held that a design for furniture was not copyrightable.  For this interested, I believe this is the Thomasville Allegro Desk that was among the eight Thomasville sought to register for copyright.  After the answer was filed Thomasville voluntarily dismissed the case, so no adjudication was ever made by the court.

In recent years there’s been a drift away from this position, as this article from INTA exemplifies.  The Star Athletica decision has been taken as further evidence of a shift to allowing copyright to protect design.  I try to avoid saying which approach is correct here, but I do think the progression of the law is interesting.

One interesting wrinkle – the copyright notice Brian found says 1959, but the denied registration and appeal were in 1968 – is it possible that in 1959 they applied a copyright notice but hadn’t filed the registration application, and the furniture in this photo wasn’t strictly related to the 1968 action?

Archival Adventures: Saving ASCAP’s Library

As folks who follow this blog know, I’ve been engaged in a semi-successful effort to track down transcripts of Supreme Court oral arguments related to IP from before they started recording audio in OT 1955.  One organization that I figured would have a couple of such transcripts, including from the foundational 1917 case of Herbert v. Shanley, was the American Society of Composers, Authors, and Publishers, or ASCAP.

The invaluable Dean Kay, author of the Dean’s List email many of you already receive daily, brokered the connection with ASCAP’s Senior VP Richard Reimer, who informed me that ASCAP was moving offices shortly, and I should move fast.  Upon arriving at ASCAP’s (former) offices, it was made clear to me that they wouldn’t have room for their library in their new offices, and it needed a new home.  About half the books were already boxed up, and I boxed up about 10 more boxes, loaded everything into the car, and drove it down to the Jacob Burns Library at the George Washington University School of Law, where I’d arranged for the books to join the collection.  The Law Library put up a nice piece about the collection here.

At first glance, one volume of particular interest to the broader public is the one related to Nathan Burkan’s defense of Mae West on charges of obscenity related to her play The Pleasure Man.  There’s a nice writeup of the story here, which I won’t repeat.  However, I have scanned the entire section of the book related to the Mae West and put it online (I didn’t scan the rest, dealing with People v. Joseph Flinn – there’s only so many hours in the day).  It’s available here, and it includes legal arguments about cross-dressing not being obscene as well as a complete draft affidavit for Mae West’s signature detailing the entire history of the production.

Below the jump I’ve included a list of the cases which have papers included in the ASCAP collection now at the GW Law Library.  This list is not complete and is just meant to help those looking for information on a particular case.

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Tracking Accuracy in Copyright Records – A Case Study

A few weeks ago, Joseph Felcone emailed me to ask about helping with a mystery in the copyright records he’d been investigating, and asked if I’d help.  For folks not in the know, Joe is an expert on New Jersey books and publishing, and the author of a number of wonderful books on the subject – including a recent catalog of all New Jersey copyright registrations from 1791-1870, which all fine libraries should own (if unsure if your library is truly fine, order a copy from Joe to cement such status).

Joe was trying to determine information about A Member of Congress. A Novel. By William Wentworth (New York: G. W. Dillingham, 1898).  He’d already figured out a fair bit of what I discuss below, but I think the process of figuring out the information is informative, because it tells us about how inaccuracy and uncertainty can creep into the copyright records.  The story continues below.

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Remembering the Washingtonian Case

This coming term, the Supreme Court will hear Fourth Estate Public Benefit Corp. v. Wall-Street.com, regarding whether a party has standing to sue upon application for copyright, or whether a party must wait for the Copyright Office to register (or reject) their application.  The Supreme Court only occasionally wades into this realm of technical copyright registration issues, and one of the last times the Supreme Court did so in earnest was in the 1939 case of Washingtonian Publishing Co. v. Pearson et al, where a divided court held that a 13 month delay between publication and registration did not invalidate the copyright in the work.  Although the issue is not the same in Fourth Estate, the issues are sufficiently adjacent (and issues of this ilk come before the Court so rarely), it’s unsurprising that Washingtonian v. Pearson is among the most-cited cases in Petitioner’s brief that was filed last month.

While serving as Abraham L. Kaminstein Scholar in Residence at the Copyright Office two years ago, I noticed that the Office has a bound volume of documents from the Washingtonian case, and that the transcript of record from the case available on microfilm and online from Gale includes fewer documents.  I’ve uploaded what I’m calling a “complete” casefile for Washingtonian v. Pearson, including documents from subsequent proceedings in the case after the Supreme Court remanded it.  Several years later the D.C. Circuit Court of Appeals upheld the damages award of the District Court in the amount of $15.46 (plus a worthless judgment against a bankrupt publisher), a number Washingtonian Publishing was none too pleased with, marking an anticlimax to the case.

As well as these documents, I’ve uploaded the testimony from the case following remand, which is to me the most interesting thing I found.  It includes the testimony of Drew Pearson, the defendant in this case, and longtime author of the “Washington Merry-go-Round” column.  From the testimony the broader context of the case becomes more clear – the Washingtonian magazine was owned by the still-famous Mayflower Hotel, which in 1931 declared bankruptcy.  This is why the issues of Washingtonian in question were not registered – they apparently kept publishing, but no funds were available to cover the registrations.  The shadow of the Depression hangs over this case – the corporate defendant Liveright Publishing filed for bankruptcy as well during this time.  It is doubtful that the litigation costs were terribly welcome by any of the parties to this case.

Finally, I’ve uploaded a selection of pleadings from the case that I don’t believe made their way into the transcript of record.  These include a motion to dismiss the case, a motion to strike parts of the defendant’s answer (those focusing on ownership of copyright, or lack thereof), and a motion for rehearing by the plaintiff.  Unlike the previous documents these do share parts of the argument over the issue of copyright formalities, but I don’t know if they actually add new information about the case and its reasoning/argument.

I had hoped to find a transcript of the oral argument from this case to add to my collection, but no such document was in the archives.  It might still exist, but I don’t know where it would be in this case.

Taking Common-Law Copyright for Pre-1972 Sound Recordings Seriously

For those unfamiliar with common-law copyright and sound recordings, it might be helpful to read my post Of Sheep and Goats summarizing the issues as context for this post, although I do go over the basics here as well.

Almost five years ago (how the time flies) I was reading about the then-new cases where Flo & Eddie of the Turtles were suing SiriusXM and Pandora for infringement of their common-law copyrights.  I distinctly remember going to bed and then getting up with a bit of a start, such is the drama of my life – I’d seen this before, and I didn’t think many others had.  In particular, while writing in my 2007 article The Twilight of the Opera Pirates, I remember reading various cases involving the operatic duo of Gilbert & Sullivan, including the Mikado and Iolanthe cases.  Both cases involved attempts by the British owners of the work to prevent American theaters from performing their in-house orchestrations of these operas, which had been orchestrated from the published piano reduction of the opera (designed to be performed at home).  At the time I’d focused on the success of the strategy, but looking back I realized something else – everyone seemed to agree that if the American theaters had used the unpublished orchestral score directly, they would be infringing the common-law copyright of the composer, even though (a) public performance of music was not infringing until over a decade later, and (b) the composer was British, and foreigners would not get copyright in America until 1891.

I dove deeper into the issue, and last month the Cincinnati Law Review published my article about common-law copyright for sound recordings, called “Common-Law Copyright.” I’ve been talking about this piece for a while now, and this will be the last such post, because it’s been published, and the final PDF is online.  My initial goal was to find more such examples from older cases, and I believe I demonstrated conclusively that common-law copyright has always included performance rights, and that such performance rights are not dependent on federal statute granting performance rights.  However, as I was writing I started to wonder whether performance rights and duration were the only points of difference between statutory and common-law copyright.

And that is why I gave my article the title “Common-Law Copyright,” instead of a title more explicitly linking it to sound recordings.  Because we’ve really failed to think through the doctrinal consequences of using common-law copyright to protect older sound recordings, or even really what common-law copyright is.  In my article I believe I document pretty clearly just how different common-law copyright is from statutory copyright, and how we’ve fairly to take it seriously as a doctrine and ended up with a muddle of unpredictability and confusion.

So, what is common-law copyright? In a nutshell, common-law copyright is the perpetual right of control over unpublished works – both pre-publication manuscripts and documents meant to be kept private, like letters and diaries.1  Copyright law both common-law and federal provides that if a work is published then it loses common-law protection In the 1930s through the 1950s, a number of court cases held that sound recordings are not published under state laws, even if publicly sold, and thus could be protected by common-law.  In 1972 sound recordings were brought within federal law and state-law protection was rendered largely moot, but this change only applied to sound recordings made on February 15, 1972 or later, leading to the current predicament regarding “pre-72” sound recordings.

In the middle of the 20th century, it wasn’t entirely clear if the doctrine was actually common-law copyright or a different sui generis protection – Courts generally didn’t use the phrase “common-law copyright,” and Nimmer – the major treatise on copyright at the time (and one of the major ones still) said in the 1973 edition that the protection for sound recordings is not common-law copyright.  However, in recent years Courts, especially in New York, have settled on the protection for pre-72 sound recordings being under common-law copyright.

Common-law copyright was abolished except for pre-72 sound recordings by the 1976 Copyright Act, meaning that Courts generally only encounter common-law copyright issues in this narrow context now.  Courts have thus tended to treat common-law copyright for pre-72 sound recordings as being largely identical to statutory copyright.  I believe this is a mistake, and if we’re going to use common-law copyright for pre-72 sound recordings, we should take the doctrine seriously and understand that it is substantially broader from statutory copyright.

The article covers a lot of ground, and I hope folks in the various affected fields find it helpful.  The Music Modernization Act, if passed, will require payment of royalties for digital audio transmission of pre-72 sound recordings, implicitly but not explicitly recognizing common-law rights in pre-72 sound recordings.  Whether we choose to take common-law copyright seriously going forward is up to us.

I try to include something archival with each post, so here‘s the casefile from Gee v. CBS on appeal to the 3rd Circuit Court of Appeals from the decision of the Eastern District of Pennsylvania, on the question of whether common-law copyright in sound recordings made by Bessie Smith is subject to adverse possession.  The very short unpublished opinion of the 3rd Circuit is also included.

Earlier Posts, which can also be seen in this blog’s Common-Law Copyright tag:

 

 

  1. The concept of mailing a document to yourself, sometimes called common-law or “poor man’s” copyright, is completely different, not to mention largely ineffectual.

Video Post: A 1992 Hearing on Copyright in Legal Compilations

One interesting thing about case reporters is that even though the text of reported cases themselves been denied copyright protection by the courts, going all the way back to 1834 in Wheaton v. Peters, case reports have been consistently registered for copyright.  In the latter part of the 1980s, Mead (the service now known as Lexis) introduced star pagination, allowing a reader to identify when a new page began in the printed reporter, which was published by West.  West Publishing sued, and in 1986 the 8th Circuit held that West had shown a likelihood of success that the Mead star pagination feature infringed their copyrights in page numbers, in other words the selection and arrangement of the case text.

In 1988 the parties settled, but concerns lingered about the applicability of copyright to law reporters and other legal compilations.  This was amplified by the 1991 Supreme Court decision in Feist v. Rural Telephone, which cast the holding of the 8th Circuit in the Mead case into some doubt.  In Congress a bill was introduced to make clear that page numbers in legal compilations could not be protected by copyright.  Thus a Congressional hearing was held on May 14th, 1992, before a subcommittee of the House Judiciary Committee, to discuss the issue of whether copyright should protect such things as page numbers.  The text of this hearing has long been available, but I think it’s much more interesting on video, and in some cases it illuminates the content of the hearing as well.  I’ve included the video below.

Robert Fulton’s 1811 Steamboat Patent – Lost and Found

Robert Fulton is generally remembered as the inventor of the steamboat.  There is some controversy over his debts to previous inventors, but Fulton was the one able to develop a steamboat which was commercially successful, and which led to the rise of steamboat transit.  I hadn’t thought about it much, but his patent in his steamboat is one of the key documents in the history of American invention and technology.  That changed a bit ago when Adam Mossoff tweeted this out about how the patents Robert Fulton took out in his famous steamboat were lost, and I couldn’t just leave it be.

Perhaps nothing gets my attention more than saying that something is “lost,” so I had to look into it.  It turns out that the patents are less lost than has commonly been assumed.  Continue reading “Robert Fulton’s 1811 Steamboat Patent – Lost and Found”