It would be nice if the AP had the courage of its convictions. The AP has issued a statement backing away from its practices in this case. We should review how the public domain works. The public domain is sold every day. Every time you buy a copy of Hamlet you are paying for a public domain work. I do H.G. Wells’s The War of the Worlds in my copyright class on this starting with Project Gutenberg—free, of course—and then heading to Barnes & Noble and Amazon, where the prices range from $2.50 to $13.95 (see slides 3 to 13). That is precisely the nature of the public domain: anyone can use it for whatever they want, including selling it. The AP is fully within its rights to sell public domain content just as Amazon does every day.
Public domain content is outside the copyright system. Again that is its nature. Ordinary rules regarding contracts and licenses should apply to circumstances under which someone is given access to public domain content. James has no right to access Thomas Jefferson’s words through the Associated Press. My advice would be to get them elsewhere as $12 seems like a lot, but this is just a question of what the competitive price of access turns out to be. Presumably for Jefferson it is very low. In other cases, it may be substantially higher. People pay entrance fees at museums across the planet to see works that long ago entered the public domain. Access costs and people pay.
James states in his blog post that “the AP has ... no right to demand money from me.” Indeed they don’t, but they have the same right to charge for access to the public domain that we all have. Think of the AP as a convenience store. We all know that we “overpay” for a gallon of milk at the local 7-11, but I doubt that most people think that 7-11 is required to hand us a map detailing how we might save a buck at a store five minutes away.
We should touch upon fair use and the First Amendment. I think that both are red herrings here. I elaborate on this in much greater detail in my article Fair Use v. Fair Access (here), but the simple version turns on two points. First, copyright is a use regime, not an access regime. Copyright does not control the terms under which I can agree to turn over access to work, copyrighted or not. Second, as to the First Amendment, the leading case on this I think is Cohen v. Cowles Media Company, 501 U.S. 663 (1991), which holds that the First Amendment is subject to ordinary rules of contract.
I should also address copyright misuse. There certainly is a suggestion in case law that selling public domain works constitutes copyright misuse. In an unreported Seventh Circuit opinion, F.E.L. Publications, Ltd. v. Catholic Bishop of Chicago, 1982 WL 19198 (7th Cir. 1982), the court flatly states “it is copyright misuse to exact a fee for the use of a musical work which is already in the public domain” citing for that proposition Mercoid Corp. v. Mid-Continent Investment Co., 320 U.S. 661 (1944). The latter is a case about patents and says not a word about copyright. And in Assessment Technologies of WI, LLC v. WIREdata, Inc., 361 F.3d 434 (7th Cir. 2004), our own Judge Posner suggests it could be copyright misuse to claim copyright in public domain data, but he also makes clear the questions of contract and license relating to that data are a separate matter.
Two points. WIREdata suggests that the AP should be careful not to claim copyright in the content that is licensing, unless it actually holds the copyright. It doesn’t need to have copyright in the content to license it—anyone can sell the public domain—and over-claiming copyright can create misuse problems. Second, the notion that fees cannot be charged for public domain content is flatly inconsistent with the conception of the public domain—content that is no longer subject to copyright—and is inconsistent with practice as many years of sales of the works of Shakespeare must make clear.
One final point. I think that the interesting case isn’t Jefferson, but Picker. I do an email interview for an AP story. They take 25 words from my email and quote me in the story. They then license that quote. I take it that I am the author of the email and the quote and that copyright attaches to it. The AP presumably has an implicit license to use the quote in the story; do we think that they have similar license from me to sell access to my copyrighted work?