11 February 2006

Humpty Dumpty

One of my favorite authors is Lewis Carroll. He's an entertaining writer with a wide range… and merciless in his skewering of certain political and social affectations. One of my favorite passages—one that applies far too often to the practice of law—occurs in Through the Looking-Glass, and What Alice Found There. Humpty-Dumpty is trying to explain to Alice why she should pay more attention to unbirthdays.

"I don't know what you mean by 'glory,'" Alice said.

Humpty Dumpty smiled contemptuously. "Of course you don't—till I tell you. I meant 'there's a nice knock-down argument for you!'"

"But 'glory' doesn't mean 'a nice knock-down argument,'" Alice objected.

"When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean—neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master—that's all."

This epitomizes many problems in copyright and publishing law. For example, although the date of publication was critical under the 1909 Act, it was undefined. Under the 1976 Act, the date of publication remains important, but until recently was defined only for phonorecordings. Courts most often analogized from the "on-sale bar" in patent law (fortunately, pretty accurately) when that issue came up. That is not the only definitional lacuna in the Copyright Act. Section 108 (and, derivatively, section 121) provides "libraries" and "archives" with certain limited exemptions from copyright law. There's just one tiny problem: nowhere does the Act define "library" or "archive;" instead, we're left just as certain as Justice Stewart, because we know one when we see one.1 We think.

The Copyright Office has noticed this problem, and has called for roundtable hearings (PDF) that should reach this issue (among others). Personally, I favor a definition based upon characteristics of the institution, and not of the "activity"; there are just too many loopholes and evasions possible with the latter, and since this is an exemption from a broad right it should be as narrow as possible while still meeting the objectives of the exemption. We'll just have to see.

  1. Comparing "library" to "hard-core pornography" may seem a bit invidious, but—

    In saying this, I imply no criticism of the Court, which in those cases was faced with the task of trying to define what may be indefinable. I have reached the conclusion, which I think is confirmed at least by negative implication in the Court's decisions since Roth and Alberts, 354 U.S. 476, that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

    Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).