18 November 2008

Google Library Project Settlement (4)

Book Bigotry

The Settlement (in essay form)
The Lawsuit (in essay form)

There is another critical assumption that lies underneath this settlement; it is so fundamental that it does not surprise me that virtually no commentator — let alone party — has mentioned it at all. It is also extremely simple to state:

All books are alike, in both commercial and copyright terms.

This assumption is blatantly false; however, seeing how it is false requires reaching well outside of the complaint to areas of publishing practice and copyright theory that remain rather obtuse.

It is easier to illuminate the publishing practices after dredging through the copyright theory, so we'll begin there. It is possible to look at the IP Clause of the US Constitution4 and draw an overbroad or incorrect conclusion here; nonetheless, that is the starting point. The IP Clause provides that "authors" shall have the "exclusive right" to their "writings." That, however, is far from the end of the inquiry; if taken literally, it would mean that no quotation of any kind would be allowed during the term of copyright. It is much too easy to stroll down the path of fair use5 in the hope that — as muddled as it is — some variety of fair use will answer the question for us. Unfortunately, as "easy" as that might be, it would be incomplete, because it would give insufficient attention to the underlying nature of the work being quoted.

That nature matters. The Supreme Court has termed this a "fact/expression" (or sometimes "idea/expression") divide, but it is probably more accurate to call it an "information/expression" divide, for two reasons: some of what would fall outside of "expression" is clearly opinion and not fact, and the term "information" dominates current usage — particularly in the internet context. In any event, the critical passage comes from a dispute over telephone books.

The mere fact that a work is copyrighted does not mean that every element of the work may be protected. Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author. Thus, if the compilation author clothes facts with an original collocation of words, he or she may be able to claim a copyright in this written expression. Others may copy the underlying facts from the publication, but not the precise words used to present them. [W]e explained that President Ford could not prevent others from copying bare historical facts from his autobiography, but that he could prevent others from copying his "subjective descriptions and portraits of public figures." Where the compilation author adds no written expression, but rather lets the facts speak for themselves, the expressive element is more elusive. The only conceivable expression is the manner in which the compiler has selected and arranged the facts. Thus, if the selection and arrangement are original, these elements of the work are eligible for copyright protection. No matter how original the format, however, the facts themselves do not become original through association.

This inevitably means that the copyright in a factual compilation is thin. Notwithstanding a valid copyright, a subsequent compiler remains free to use the facts contained in another's publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement. As one commentator explains it:

"[N]o matter how much original authorship the work displays, the facts and ideas it exposes are free for the taking…. [T]he very same facts and ideas may be divorced from the context imposed by the author, and restated or reshuffled by second comers, even if the author was the first to discover the facts or to propose the ideas."

Ginsburg [at] 1868.

It may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not "some unforeseen byproduct of a statutory scheme." It is, rather, "the essence of copyright," ibid. and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but "[t]o promote the Progress of Science and useful Arts." To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship. As applied to a factual compilation, assuming the absence of original written expression, only the compiler's selection and arrangement may be protected; the raw facts may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.6

The implication here — one that is usually made only at the border between "copyrightable" and "not copyrightable" — is that the strength of a copyright depends, in large part, on how closely integrated expression is with the underlying fact/idea/information. In turn, this feeds directly into the first of the four statutory fair-use factors. This indigestible snack will have to wait for next time; it will prove particularly indigestible for those who advocate in favor of this deeply flawed settlement.

  1. U.S. Const. Art. I, § 8, cl. 18. I will be concentrating on US perspectives here, since this is US litigation (despite Google's intention to make it international). That said, what follows is consistent in broad outline with much foreign treatment of the issue, too. See, e.g., Baigent v. Random House Gp., Ltd., [2007] EWCA Civ 247, especially ¶¶ 62–66.
  2. Under the 1909 Act, fair use was a judge-made doctrine. Under the 1976 Act, which came into effect in 1978 (don't ask if you don't already know — you really don't want to), fair use is defined in 17 U.S.C. § 107. Sadly, but all too typically, this definition is incomplete; in practice, the nonstatutory fifth factor — administrative convenience — appears to drive most decisions. Cf. C.E. Petit, Cost Allocation and Copyright Orphans (2006) (PDF). Of course, that fifth factor is also at the core of this lawsuit.
  3. Feist Pubs., Inc. v. Rural Tel. Svc. Co., 499 U.S. 340, 348–50 (1991) (internal citations omitted, except for Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 Colum. L. Rev. 1865 (1990).