The Associated Press: Selling the Public Domain?

James Grimmelmann has been having some fun with the Associated Press (here, here and here). The AP participates in the icopyright content licensing system in an effort to monetize their content. James bought a license through the system to a well-known quote from Thomas Jefferson for $12. That came subject to icopyright’s elaborate terms of use that put a variety of restrictions on how he could use the content in his blog. The Jefferson quote of course has long been in the public domain. In response to a furor over the last day—spurred by a post on BoingBoing, discussion on Slashdot and a tweet by Tim O’Reilly to his 878,907 followers on Twitter—thereby hitting the Holy Trinity of the digital world—the AP has revoked the license and returned the $12 with the AP duly chastised.

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?

Comments

[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.