Easterbrook on copyright

University of Chicago Law Review

Volumn 77, Issue SPEC. ISSUE, 2010, Pages 1165-1179

  Picker, Randal C ^a,b  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

^b ARGONNE NATIONAL LABORATORY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 78649914983     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (72)

1. -899 F2d 1537 (7th Cir 1990).
2. -125 F3d 580 (7th Cir 1997).
3. -86 F3d 1447 (7th Cir 1996).
4. For an extended look at the prevalence of opinions from different courts in copyright casebooks, see generally William K. Ford, Judging Expertise in Copyright Law, 14 J Intel Prop L 1 (2006) (arguing that "experience" and "influence" in copyright law "are not evenly distributed across the courts").
5. See 17 USC §102(b) ("In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.").
6. -499 US 340 (1991).
7. Id at 353-55.
8. See also id at 364 (" [C]opyright rewards originality, not effort.").
9. -17 USC §102(b).
10. -499 US at 346.
11. Castle Rock Entertainment, Inc v Carol Publishing Group, Inc, 150 F3d 132, 135 (2d Cir 1998) (determining whether a trivia quiz book about Seinfeld infringed the television show's copyright).
12. Id at 138-39 (finding that "each SAT trivia question is based upon original, protectable expression," and that "each 'fact' tested by The SAT is in reality fictitious expression created by Seinfeld's authors").
13. Nash, 899 F2d at 1538.
14. See id.
15. See Jay Robert Nash, The Dillinger Dossier (December Press 1983);
16. Jay Robert Nash, Dillinger: Dead or Alive? (H. Regnery 1970).
17. See also Jay Robert Nash, Murder among the Mighty: Celebrity Slayings that Shocked America (Delacorte 1983);
18. Jay Robert Nash, Look for the Woman: A Narrative Encyclopedia of Female Prisoners, Kidnappers, Thieves, Extortionists, Terrorists, Swindlers and Spies from Elizabethan Times to the Present (M. Evans 1981);
19. Jay Robert Nash, Murder, America: Homicide in the United States from the Revolution to the Present (Simon & Schuster 1980);
20. Jay Robert Nash, Darkest Hours: A Narrative Encyclopedia of Worldwide Disasters from Ancient Times to the Present (Nelson-Hall 1976).
21. Nash, 899 F2d at 1538 n**.
22. See id at 1538 ("Nash's reconstruction of the Dillinger story has not won adherents among historians-or the FBI.").
23. See "The Dillinger Print," Simon & Simon (CBS television broadcast, Mar 8, 1984), online at http://www.hulu.com/watch/45559/simon-and- simon-the-dillinger-print#s-pl-so-i0 (visited Feb 25, 2010).
24. See Nash v CBS, Inc, 704 F Supp 823, 828 (ND 111 1989) (summarizing the episode).
25. Nash, 899 F2d at 1540.
26. Id at 1541.
27. Id.
28. Id.
29. Nash, 899 F2d at 1542 ("Long before the 1976 revision of the statute, courts had decided that historical facts are among the 'ideas' and 'discoveries' that the statute does not cover.").
30. See Act of May 31,1790 §1,1 Stat 124, 124.
31. Act of May 31,1790 §1,1 Stat at 124.
32. See Act of August 18, 1856 ("Copyright Act of 1856"), 11 Stat 138, 138.
33. Copyright Act of 1856, 11 Stat at 139.
34. Act of July 8, 1870 ("Copyright Act of 1870") § 86, 16 Stat 198, 212.
35. See Copyright Act of 1909 § 1(b), 35 Stat 1075, 1075: [A]ny person entitled thereto, upon complying with the provisions of this Act, shall have the exclusive right... to translate the copyrighted work into other languages or dialects, or make any other version thereof, if it be a literary work; to dramatize it if it be a nondramatic work; to convert it into a novel or other nondramatic work if it be a drama; to arrange or adapt it if it be a musical work; to complete, execute, and finish it if it be a model or design for a work of art.
36. Copyright Act of 1909 §1(b), 35 Stat at 1075.
37. -17 USC §101 (providing the definition of derivative work).
38. William Landes and Richard Posner make this point as well.
39. See William M. Landes and Richard A. Posner, The Economic Structure of Intellectual Property Law 265-66 (Belknap 2003) (noting that Lee might find it profitable to engage in price discrimination because companies "are likely to have [ ] less elastic demand... than consumers").
40. -125 F3d at 581: Cases such as Gracen v. The Bradford Exchange, Inc., 698 F.2d 300 (7th Cir. 1983), show that neither A.R.T. nor Lee herself could have obtained a copyright in the card-on-a-tile, thereby not only extending the period of protection for the images but also eliminating competition in one medium of display.
41. -17 USC § 202 ("Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied.").
42. -17 USC § 101.
43. -17 use § 101.
44. -17 USC § 101.
45. -125 F3d at 581 (assuming for the sake of argument that "affixing the art to the tile is 'preparation,' so that A.R.T. would have violated §106(2) even if it had dumped the finished tiles into the Marianas Trench," but avoiding a decision of that question on the merits).
46. Id.
47. See id at 582-83.
48. See Berne Convention for the Protection of Literary and Artistic Works, Art 6bis (1979), online at http://www.wipo.int/treaties/en/ip/berne/trtdocs- wo001.html (visited Dec 22, 2009): Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.
49. See 17 USC § 106A(a) (giving the author of a work of visual art rights to protect against its destruction or modification); 17 USC §101 (providing the definition of a work of visual art).
50. -17 USC §106A(a)(3)(B) (giving authors of visual art the right to prevent "any destruction of a work of recognized stature").
51. See also Lee, 125 F3d at 581.
52. See 17 USC § 106A(b) ("Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner.").
53. ProCD, 86 F3d at 1449 ("ProCD, the plaintiff, has compiled information from more than 3,000 telephone directories into a computer database.").
54. Id.
55. Id.
56. There are more possibilities, as Easterbrook himself describes. See Frank H. Easterbrook, Contract and Copyright, 42 Houston L Rev 953,965-66 (2005) (arguing that possibilities might include: (1) ProCD would not be sold; (2) ProCD would set a higher overall price on its product; (3) ProCD would sell the underlying information only, and not the end product; and (4) ProCD could sell a product that has better features at a higher price, and a product with inferior features at a lower price).
57. ProCD, 86 F3d at 1450.
58. For a discussion of the controversy, see Stewart Macaulay, Freedom from Contract: Solutions in Search of a Problem, 2004 Wis L Rev 777, 803 (disagreeing with Judge Easterbrook's decision and arguing that ProCD could have printed the clauses in invisible ink without giving Zeidenberg less notice).
59. See also Richard A. Epstein, ProCD v. Zeidenberg.' Do Doctrine and Function Mix?,
60. in Douglas G. Baird, ed, Contracts Stories 94, 100-13 (Foundation 2007) (comparing the stark differences between Judge Barbara Crabb's analysis of the case at the district court level and Judge Easterbrook's analysis at the circuit court level).
61. See ProCD, 86 F3d at 1450-53 (explaining that printing a license on a product's box would require "microscopic type," so the license terms were best included in the software itself).
62. European Parliament and Council Directive on the Legal Protection of Databases 96/9/EC (Mar 11, 1996).
63. -17 USC § 301(a).
64. -17 USC § 301(a), (b)(3).
65. See ProCD, 86 F3d at 1452,
66. citing National Car Rental Services, Inc v Computer Associates International, Inc, 991 F2d 426, 433 (8th Cir 1993);
67. Taquina v Teledyne Monarch Rubber, 893 F2d 1488, 1501 (5th Cir 1990);
68. Acorn Structures, Inc v Swantz, 846 F2d 923, 926 (4th Cir 1988).
69. See ProCD, 86 F3d at 1454.
70. Robert A. Gorman and Jane C. Ginsburg, Copyright: Cases and Materials 1048-50 (Foundation 7th ed 2006).
71. Julie E. Cohen, et al, Copyright in a Global Information Economy 709-11 (Aspen 2d ed 2006).
72. ProCD, 86 F3d at 1455.