Monday, December 10, 2012

Heisenberg's Uncertain Copyright

If you participate in LinkedIn, you've been recently deluged with requests to endorse the skills of people in your network. I decided to have some fun with that, and listed "Quantum Copyright" as one of my skills. To cement my claim to be the world's foremost expert in quantum copyright, I decided to examine the microscopic question of where copies occur. The closer you look, the more uncertain the location of the copying becomes!

It turns out that where a copy is made has consequences. Consider Fitzgerald's The Great Gatsby. A recent LibraryCity blog post by David Rothman suggested that Bill Gates should use a tiny bit of his fortune to buy out the remaining copyright of Gatsby, supposedly one of Gates' favorites. On Unglue.it, 70 ungluers share the sentiment that The Great Gatsby should join Huckleberry Finn as a great American novel that belongs to all of us in the public commons.

Funny thing is, The Great Gatsby already belongs to every Australian, in the sense that Australians have the right to read and copy it for free without anybody's permission. In the US, it belongs to the CBS Corporation, and if you want to read it on Kindle, it'll cost you $7.80.

If you copy Gatsby in Australia, no problem, it's cool, because Gatsby has entered the public domain. There's an excellent version available from Project Gutenberg Australia. If you do it in the US without permission from CBS, it constitutes copyright infringement and is punishable with jail time and statutory damages up to $150,000 per incidence of infringement. So it really matters where the copying occurs.
click to beam

But we live in an era where books can be transported from one location to another without one of those Star Trek machines which turn goofy aliens and crewmen into particle beams. It's no longer obvious where copying occurs.

Suppose you have a book sitting on a computer in Australia. The computer breaks the book into thousands of UDP packets and sends them into the Internet. Copying can't have occurred yet, because the packets aren't fixed in any form. For copyright purposes,
“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed. http://www.copyright.gov/title17/92chap1.html
Now suppose the packets are reassembled on my hard drive in New Jersey. A copy of "The Great Gatsby" has materialized. Has a copyright been infringed? If I was in Australia and the source of the packets was in the US, would the answer be different?

click to beam

I don't know the answer; I am not a lawyer. But I'm an engineer and I can read and I understand the communication processes that have occurred in the book transporter. I'm pretty sure that copying has occurred, and that part of the copying process occurs in a location where no copyright attaches to The Great Gatsby.

Maybe it doesn't even matter where the copying occurs. Maybe it depends on who's in control of the copying. In the age of quantum copyright, action at a distance is not at all a problem. Here's what US Copyright law says:
The owner of copyright under this title has the exclusive rights to do and to authorize ... to reproduce the copyrighted work in copies or phonorecords;
You could read that as saying only that nobody other than the copyright owner and subject to the jurisdiction of the statute is allowed to reproduce the copyrighted work regardless of where reproduction occurs. So if the person doing the copying is in Australia, maybe it doesn't matter where the copying actually occurs.

So we have 8 different quantum copyright location scenarios; 6 have uncertainty as to the fact of infringement:
  1. Person copying, copy source, and copy destination all in US. (US law controls!)
  2. Person copying, copy source, and copy destination all in Australia. (Australia law controls!)
  3. Person copying and copy source in US, copy destination in Australia.
  4. Person copying and copy source in Australia, copy destination in US.
  5. Person copying and copy destination in US, copy source in Australia.
  6. Person copying and copy destination in Australia, copy source in US.
  7. Person copying in US, copy source and copy destination in Australia.
  8. Person copying in Australia, copy source and copy destination in US.
You could also be a cynic and say the only thing that matters is where the judge is sitting. But really, this whole situation with territorial copyright variation is ludicrous and prehistoric and we really should be spending our time and money curing malaria instead.

Next week: copyright and special relativity. In what frame of reference do copyright terms exist?

Notes:

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6 comments:

  1. And what if you made a copy to your computer in Australia and then take your computer to the USA. You are not making a copy then, but you have a copy in the USA. Is that copy then affected by USA copyright law?

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  2. Given how much arguing in Kirtsaeng's oral arguments concerned the import of "under this title", I think it's the same issue entirely...

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  3. Piet (and Andromeda) when you copy in Australia, then import to the USA, section 602 (b) applies, and the "under this title" SCOTUS discussion during Kirtsaeng is on point, definitely. And maybe a court would say that copying with source in Australia and destination in US constitutes importation of a copy rather than transnational copying. My main point is we don't really know which is which for legal purposes. The legal code appears to me to presume that copying and importation are separate actions. But what do I know?

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  4. Thanks for the great post! There is another factor in your Quantum Copyright hypothetical to consider before "jail time and statutory damages." And it has a direct effect on every scenario you name: jurisdiction. Jurisdiction (simply defined) is a court's power to hear and decide a matter. In your cases it may be a court's power to hear and determine matters between different countries or persons of different countries. This is decided first - even before any copyright claims are vetted before the court. Without jurisdiction, the court can't even hear the copyright case. Many a copyright lawsuit has been sunk by a motion to dismiss for lack of jurisdiction. Of equal importance to your "quantum copy" questions are questions of harm: where does the copyright harm to an individual/corporation occur? What degree of harm that occurs will suffice to exercise jurisdiction over a non-citizen of Australia or the U.S.? Often these murky questions stop an interesting, and perhaps groundbreaking case, from getting the full copyright analysis.
    (Also – Australia has a long history of dealing with “copies” in unique ways. See Dow Jones v. Gutnick [2002] HCA 56, where the Australian court employs the “multiple publication rule” which states there is a separate publication in relation to each copy delivered to a reader. If a newspaper circulates 100,000 copies of the one edition [defamatory, libelous, illegal, etc. to plaintiff], she has available to her at least 100,000 causes of action.)

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    1. Yes, jurisdiction. That's part of what I meant by "where the judge is sitting". But the more I learn about it, the less I understand.

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  5. Eric,

    Actually this situation is a whole lot more ambiguous than you suggest.

    Your scenarios 3-8 are perhaps interesting theoretical constructs but they have little basis in reality. Copying doesn't really happen over a network. Bits are copied locally and then sent somewhere; and along the way many other copies are made. Thus the question is really which of those many copies qualify as "incidental," not requiring permission under law or license. The treatment of incidental copies probably varies more, and is more ambiguous, across national copyright laws than your scenarios 3-8.

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