It’s My Copyright And I’ll Do What I Want To

In this piece, Stephen Carlisle unpacks some of the recent discourse surrounding copyright law, brought about by a recent paper from Standford Law professor Mark Lemley.

Guest post by Stephen Carlisle of NOVA Southeastern University

With apologies to Leslie Gore (and Quincy Jones), once again, copyright owners have come under fire for not allowing the public to do whatever they want with their property.

Yes, as much as the anti-copyright activists are loathe to admit it, copyright is a recognized form of personal property. It says so right there in the Copyright Act. ¹

So, why is there the constant push by anti-copyright forces to assert that regardless of the fact that a copyright is your personal property, something you should absolutely control, that for various absurd reasons, you should not 100% control how it is used.

The latest is a paper by Stanford Law professor Mark Lemley ² that as reported by 360 Law asserts:

“‘The public should have legal access to published content absent some compelling justification for withdrawing it from the world,’ according to the paper’s author Mark Lemley, who is also the director of Stanford Law School’s Law, Science and Technology program and a partner at Durie Tangri LLP.” ³

Let’s note at the outset, that both the article and the paper are held behind restrictive walls, that require registration, and the disclosure of personal information before one is given access to the material. Hardly in the spirit of the assertion by Prof. Lemley, is it?

But, I digress.

The complaint of the paper is that some works are withdrawn because they no longer reflect the viewpoint of the author. Or that the work is no longer economically viable. Or, as in the case of the original “Stars Wars” trilogy, that the author has reissued them in a “new and improved” format that the author has deemed more reflects his artistic vision. ⁴

The simple answer, obviously too simple, is that it’s MY copyright. And I, not you, get to decide how the work is exploited. Including whether to exploit the work at all, or withdraw it from publication entirely.

Let’s analogize to a classic automobile. A very rare automobile. Let’s say a 1963 split-window Corvette Stingray. ⁵ You spend a lot of time, effort and money restoring it to almost new condition. Having taken that time and effort, you might be reticent about taking it out on the highway. You might drive it seldomly, rarely, or if you are a car collector, not at all, in order to preserve its value.

So, according to Lemley, the fact that you are not driving your carefully restored car is against public policy. He should be able to hop in and drive off without paying a penny to you.

Yet, I can hear them yell: “But this is copyright! Copyright is different! It needs to promote the progress of science and the useful arts!”

Not at all. Copyright is not now, nor ever has been a “use it or lose it” right. To quote this Federal District Court:

“However, the Court cannot apply one fair use analysis where copyright holders can show they plan to exploit their rights to make derivative works and another fair use analysis in a case where copyright holders have not exploited such rights for half a century or longer or disclaim any intention of exploiting them in the future. Such an approach would be inconsistent with the Copyright Act. Congress did not provide a use-it-or-lose-it mechanism for copyright protection. Instead, Congress granted a package of rights to copyright holders, including the exclusive right to exploit derivative works, regardless of whether copyright holders ever intend to exploit those rights. Indeed, the fact that any given author has decided not to exploit certain rights does not mean that others gain the right to exploit them.” ⁶

It doesn’t get much plainer than that. And if you want to dedicate your work to the public domain, then you should be able to do so. But this is not a choice that should be forced upon you.

Take the case of satirical songwriter Tom Lehrer. A mathematician by training, he nevertheless attained significant success in the 1960’s writing many “astringent, cynical and often pointedly political songs,” for which he wrote both the music and lyrics. ⁷ Such as The Masochism Tango.

I ache for the touch of your lips dear,

But much more for the touch of your whips, dear,

You can raise welts

Like nobody else

As we dance to The Masochism Tango. ⁸

He made headlines last week by publicly disclaiming any future enforcement of copyright to his lyrics. On his website he posted the following:

“I, Tom Lehrer, and the Tom Lehrer Trust 2000, hereby grant the following permission:

All the lyrics on this website, whether published or unpublished, copyrighted or uncopyrighted, may be downloaded and used in any manner whatsoever, without requiring any further permission from me or any payment to me or to anyone else.” ⁹

Many new outlets incorrectly reported that Lehrer had injected his works into the public domain. This is not correct. He is simply refusing to enforce his copyrights. As his website clearly states:

“In other words, all the lyrics herein should be treated as though they were in the public domain.” ¹⁰

This is not the same thing as dedicating works to the public domain. Even the Creative Commons “Public Domain” license is just that: a license, not a grant.

So, if Mr. Lehrer wishes to allow his musical works to be used for free without a license, well God bless him. That is his choice to make. It is in no sense, a choice that should be made for him or forced upon him. After all, subsequent to his popularity in the 1960’s, by 1970, his career had waned. Part of this was by choice.

“Still, by the early 1970s, he had largely withdrawn from music. He focused instead on academia. Though he had taught political science at the Massachusetts Institute of Technology in 1962, he took a full-time job teaching at the University of California, Santa Cruz, where he taught until 2001 when he retired.

Outside of a few concerts and appearances, Lehrer largely remained out of the spotlight over the past 50 years. According to him, he simply didn’t find making music interesting. A private man, he dislikes giving interviews and he also hates the monotony of touring. He also says he only wrote music when it interested him. Once it stopped being interesting, he moved on.” ¹¹

Which, I believe, is called freedom. Even when it’s freedom NOT to do something.

Which is what America is supposed to be about.

Even for copyright.

Notes:

1. 17 USC 201 (d) (2) ↩
2. Professor Says Fair Use Should Cover Hard-To-Find Works ↩
3. Professor Says Fair Use Should Cover Hard-To-Find Works ↩
4. Professor Says Fair Use Should Cover Hard-To-Find Works ↩
5. This 1963 Corvette Has an Ultra Rare Option ↩
6. Penguin Random House v. Colting 270 F.Supp. 3d 736 at 753 District Court for the S.D.N.Y. 2017 ↩
7. Tom Lehrer at 90: a life of scientific satire ↩
8. The Masochism Tango ↩
9. Songs and Lyrics by Tom Lehrer ↩
10. Id. ↩
11. Tom Lehrer: The Public Domain Tango ↩