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August 04, 2009

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Tim Lee

I think the key difference between a publisher selling H.G. Wells’s and the AP "selling" Thomas Jefferson is what's being sold. In the former case, the publisher is selling a physical artifact that happens to be a copy of Wells's work. A printed copy of a work is a valuable thing whether or not the work is in the public domain.

The AP isn't selling a printed copy of anything. It's not even selling access to anything; after all, Prof. Grimmelmann provided the quoted text himself. All the AP is selling is a license, which is just another way of saying a promise not to sue for copyright infringement. A license is only valuable if the licensor held a copyright in the first place.

The same point applies, in subtler form, to the intended use of the AP's tool. By asking you to pay $12 for the privilege of quoting a couple dozen words, it is clearly implying that permission is required under copyright law to use those words. I think it's pretty clear that this is false. So the AP is, in essence, selling an empty promise. I don't think it should be illegal for the AP to sucker people into buying empty promises, but I think they deserve to be ridiculed for it.

Randy Picker

Tim, I don't think that you are confronting the access point. If you have access already to a public domain work, no reason to buy a license to access it. James only did so because he wanted to raise a ruckus. If you don't have access to it, then the question is what determines the access price and what conditions can be attached to it. Not a copyright question.

On the fair use point if you have already obtained unconditional access to the work, then the question is what use is fair. I am with you in thinking that many of the uses that the AP will license are actually fair uses, but the license then is an insurance policy against a very low probability event (get sued and lose the fair use case). Do we generally ban sales of insurance for low-probability events?

Tim Lee

"Do we generally ban sales of insurance for low-probability events?"

No, but I think we do look askance at arrangements in which the guy selling the insurance is also the guy who would cause the low-probability event to occur. ;-)

Tenrou Ugetsu

Not only that, but their is also an issue with unconscionability associated with these types of low-probability insurance. Infant life insurance is one such example, they capitalize on the fear of parents. And in this uncertain economy, i'm sure new parents would be afraid of everything.

Michael O'Donnell, CEO, iCopyright

Slight correction. The terms of use that you refer to are not set by iCopyright. The terms of use are uploaded into the iCopyright system by each publisher. They can be as simple or as elaborate as each publisher wishes.

Additionally, the quote that Mr. Grimmelmann claimed to have licensed was not even in the article he claimed to have gotten it from. Had the article actually contained the quote from Jefferson, then your point is spot on, it could have been licensed and there would have been no cause to revoke it merely because it could have been found elsewhere for free.

In any case, this was a spiteful attempt to game the system. It was easily caught because of the system's checks and balances outlined in this blog post: http://icopyright.blogspot.com/. The purpose of the system is to make it easy for individuals and companies to license copyrighted material for commercial purposes. Without such a system, permissions can take days or weeks. The system was not designed to sell licenses to material in the public domain.

Mockingbird

Grimmelmann's point was that the licensing software was so crude that it did not even verify that the words for which license was sought were even in the article being quoted. All the software does is count words.

The underlying assumption of the price-structure, that any quotation over 4 words is not a fair use, seems pretty funny, too.

Might selling licenses to quote words in the public domain not consitute breach of warranty of title and failure of consideration? See Tams-Witmark Music Library v. New Opera Company, 81 N.E. 2d 70 (NY 1948).

D.S.

This is like arguing that every student who cites an author owes that author royalties, and, if not paid, that author has the right to file a grievance. Opening a book, viewing content and extracting that content is therefore illegal. The idea is a logical fallacy. It implies that any type of information shared in the public domain can be copyrighted and thus sold for a profit. The litigious consequences of such action would be extreme: any use outside of stated restrictions, including paraphrase, or rewording, of such text by an individual, group, or corporation could result in litigation. Further, if an individual or group is not using the information to derive profits, then where are the damages? Access to content seems, to me, pretty well regulated already: charge an initial membership fee to your website, then the consumer can have unlimited access to its content. Quoting Thomas Jefferson in your blog is not the same as quoting "just do it" on the new energy drink you're selling. New question, please.

David Schneyer

It's a tricky question for sure. On one hand, news outlets publish quotes with the intention of releasing them into the public domain. That is the very purpose of journalism. Furthermore, news is neither an art or an invention, so there is no claim of intellectual property. But on the other hand, a tremendous amount of effort and money are put into obtaining most quotes. Often, psuedo-news outlets like the Huffington Post will rip off a story published in the New York Times. Why should the Times spend money on an original story in the first place if people won't get the news from them (thus denying them the money from advertising)?

I guess the answer is that pseudo-news outlets can rip off quotes, but they hurt the field of journalism in doing so. It's inefficient economics, but its the law.

Mr.Choice

Oh! This is really interesting. AP did the right thing by refunding the charge. Plagiarists should pay for the content they scrape from news websites and weblogs though.

Veronica Appleton

"The public domain is a free standing economy. A news organization having the urge to charge a license fee would cause infringement for the soceity and more so for the copyright industry."

Dave

It seems troublesome that a license to access a work can control what you do with that content if the content is in the public domain. The public domain is the public domain. If you buy a license to access a portion of the public domain, are you claiming that you can then sue me if I use that content in a way that terms of the license prohibit? I suppose that is a valid license--but is it a desirable one? Essentially parties will be suing over breach of contract instead of copyright infringement. These suits, although in the form of breach of contract, are still suits over use of the public domain.

Another question arises: what happens when a part of the public domain is no longer accessible except through licenses? If all of these licenses prohibited the same use, then use of that portion of the public domain would be prohibited for everyone. Now the public domain is . . . well, no longer the public domain--transformation through license.

Curt Sampson

So what would AP's liability be if I requested a license to use text they had no permission to license, and were later sued by a copyright holder of that text?

Is it even legal for the AP to claim copyright ownership over the public domain text they licensed? Those who sell copies of Hamlet do not do this, as far as I've seen: they may claim copyright on their own commentary, and make some sort of claim over the typesetting arrangement and the like, but I've never seen a public domain work published in book form where the publisher claimed copyright on the public domain work itself.

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