From: "Hansen, Dave" <[log in to unmask]>
Date: Wed, 1 Feb 2012 00:16:37 +0000
Thanks for all the responses to this. The WSJ article is great.
Even though this is essentially a private contract dispute, my
thinking was that perhaps it would not just settle and go away because
it appears that there is some bad blood between the Open Road CEO and
Harper Collins. I do not know if that is true, but sometimes if the
parties are angry enough, they won't settle for any reason.
As for importance: Yes, every contract does differ, but I think it
could be useful if there were some more guidance on how these types of
terms will be interpreted. The Random House case is one of the few
that really delves into this issue. NY Times v. Tasini, indirectly,
touches on some similar ideas. I think these cases are more helpful
for what they say about default positions and the burden of proving
who has what rights when contracts don't exist or are silent on the
issue, rather than the exact language of the contract before the
court. We have some decisions on that, but I'd like more clarity.
Also -- to backstop Kevin's last point about the social aspect of
copyright, that is not just a relic of old thinking about copyright.
Justice Stevens makes this point very simply in Sony Corp v. Universal
Studios (the Betamax case) :
"The monopoly privileges that Congress may authorize are neither
unlimited nor primarily designed to provide a special private benefit.
Rather, the limited grant is a means by which an important public
purpose may be achieved. It is intended to motivate the creative
activity of authors and inventors by the provision of a special
reward, and to allow the public access to the products of their genius
after the limited period of exclusive control has expired. "
Although the most recent Supreme Court decision (Golan v. Holder) does
not seem to require a very strict connection between copyright's
purpose and the statutory method by which Congress achieves it, I
think it can (or at least should) inform the way that we approach the
whole bundle of exclusive rights and the limitations on those rights.
That being said, I think Joe is right, "It's a hard thing to have your
rights taken away because they are inconvenient to someone else." One
of the more important things to be gained from a decision in cases
like the Harper Collins case is that it puts us more on the same page
about what, precisely, those rights mean and how we can transfer them,
even in the context of a private contract.
> -----Original Message-----
> From: LibLicense-L Discussion Forum [mailto:[log in to unmask]]
> On Behalf Of Kevin Smith
> Sent: Tuesday, January 31, 2012 5:08 AM
> Subject: Re: Harper Collins E-books Case
>
> To say that copyright should trump social concerns misses the fact that, in
> Anglo-American law, copyright is entirely a matter of social policy. The
> authorization given to Congress to pass patent and copyright laws in the
> Constitution explicitly ties that authorization to a social purpose -- to
> promote the progress of science and useful art. Presumably laws that do not
> enact this social purpose are outside the scope of congressional authority.
> This follows logically from the English case called Donaldson v. Beckett from
> 1774, in which the House of Lords ruled that copyright was entirely a matter
> of statutory law, not a natural right that could survive even after that
> statutory grant expired. The U.S. Supreme Court affirmed this principle in the
> case of Wheaton v. Peters (1834).
>
> As much as authors, and, more frequently, publishers, would like to assert
> that copyright should trump social policy, it has always been a simple matter
> of social bargaining in the U.S. and U.K. -- grant a limited monopoly in order
> to achieve a specified communal purpose. One of my favorite British
> authors, Matthew Arnold, captured this social negotiation nicely in his 1882
> essay on copyright:
>
> "An author has no natural right to a property in his production, but then
> neither has he a natural right to anything whatever which he may produce or
> acquire. What is true is that a man has a strong instinct making him seek to
> possess what he has produced or acquired, to have it at his disposal; that he
> finds pleasure in so having it, and finds profit. The instinct is natural and
> salutary, although it may be over-stimulated and indulged to excess. One of
> the first objects of men, in combining themselves in society, has been to
> afford to the individual, in his pursuit of this instinct, the sanction and
> assistance of the laws, so far as may be consistent with the general
> advantage of the community."
>
> Kevin L. Smith, M.L.S., J.D.
> Director of Scholarly Communications
> Duke University, Perkins Library
> Durham, NC 27708
> [log in to unmask]
>
> -----Original Message-----
> Subject: Re: Harper Collins E-books Case
> From: Joseph Esposito <[log in to unmask]>
> Date: Fri, 27 Jan 2012 22:44:28 -0800
>
> Well, maybe so, but I would think (and hope) that the matter of copyright
> trumps the social concerns you appear to be alluding to.
> It's a hard thing to have your rights taken away because they are
> inconvenient to someone else.
>
> Joe Esposito
>
>
> > From: Sean Andrews <[log in to unmask]>
> > Date: Thu, 26 Jan 2012 21:49:42 -0600
> >
> > > From: Joseph Esposito <[log in to unmask]>
> > > Date: Wed, 25 Jan 2012 20:44:03 -0800
> > >
> > > Much to argue over on this issue, and people will argue, but it does
> > > in the end seem to me to be a contract dispute, not a broader issue
> > > of copyright.
> >
> > But these two things are not mutually exclusive: it becomes an issue
> > of copyright as a social and cultural norm if the internecine web of
> > contracts makes it impossible to create any legal and economically
> > sustainable (both in energy and money) to create a business or
> > distribution system using current technological possibilities. In any
> > case, this is a very interesting development, if only to expose
> > another layer of ambiguity in this situation.
> >
> > Thanks for your comments and for David's passing it along.
> >
> > Sean
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