Against Monopoly

defending the right to innovate

Monopoly corrupts. Absolute monopoly corrupts absolutely.

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11th Circuit Rules That Magazine Repoductions in CD-ROM Anthologies Don't Violate The Copyrights Of Individual Magazine Contributors After All

A full en-banc 11 judge panel was asked to reconsider their previous ill-advised opinion, and a majority managed to come to their senses by an 8 to 5 vote.

In reading the opinion, it is clear what a monstrosity the Copyright Act has become - not just substantively, but in form. What ought to be the simplest of all laws that governs the flow of speech and information for everyone has now reached a level of complexity akin to the tax code.

But if you are patient and are able to get through it, you will understand just how constipated the thinking is of the dissenting judges. (Be sure to read all of the footnotes as well. The majority opinion uses them to eviscerate the reasoning of minority.)

There are so many things wrong with so many issues discussed in the opinion that it is impossible to address in one sitting. I'll only touch upon a few here.

The truly bizarre opinion comes from Judge Birch's dissent, which begins on page 27 of the opinion. Is he really suggesting that if a magazine publisher digitally transfers its pages to a CD-ROM, no copyright violation takes place, but if you then add a search program to the CD-ROM's contents, the photographer who contributed to the magazine then has a valid claim for infringement?? Maybe I'm somehow misreading the opinion, but that is the conclusion I'm drawing from it.

Nope. I didn't misread the opinion. William Patry drew the same conclusion from Birch's original decision. Patry provides additional background on the case in his post. As Judge Burch notes in the 26th footnote to the opinion "Moreover, Professor Patry even refers to me as a 'Luddite' in his recent copyright treatise edition."

In my view, that is a rather charitable word to describe Judge Birch regarding his view of copyright law.

Also be sure to check out his views on pages 72-73 of the opinion that essentially states that it is actually OK for publishers to store historical archives, just as long as access to them is limited to small, elite group of "researchers and scholars" - not the general public.

Judge Anderson's dissent isn't quite as bizarre, but that's not saying all that much. It is still so obviously wrongheaded that it is painful to read. His reasoning can be summed up in the example he cites on page 77 of the opinion which I will paraphrase as such -

Photographer X contributed a photograph to National Geographic Magazine for its March 2000 issue on Africa. He retains copyright in the individual photograph, but National Geographic has the right to reproduce it as part of its 'collective work' - meaning its magazine issue.

Years later, National Geographic decides to publish an anthology of all its past issues that dealt only with the subject of Africa, omitting the issues on other subjects. As part of this anthology, the March 2000 issue was reproduced - bound in the volume along with all of the other issues pertaining to Africa.

Anderson claims that if National Geographic merely re-printed the March 2000 issue as a stand-alone copy, there would be no copyright problem. But by placing it in the context of a larger anthology of Africa, Photographer X now miraculously has a claim for copyright infringement - even though X's photograph is reproduced within the exact same context within the issue itself. [The majority opinion points out in footnote 18 that Anderson's example should indeed be protected activity.)

What the hell is going on in that Circuit?? I realize that the majority thankfully won out in this case, but somebody still needs to switch out the Kool-Aide over there.


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