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.
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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.htmlNow 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?
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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:
- Person copying, copy source, and copy destination all in US. (US law controls!)
- Person copying, copy source, and copy destination all in Australia. (Australia law controls!)
- Person copying and copy source in US, copy destination in Australia.
- Person copying and copy source in Australia, copy destination in US.
- Person copying and copy destination in US, copy source in Australia.
- Person copying and copy destination in Australia, copy source in US.
- Person copying in US, copy source and copy destination in Australia.
- Person copying in Australia, copy source and copy destination in US.
Next week: copyright and special relativity. In what frame of reference do copyright terms exist?
- Kirtsaeng is another issue entirely. (But see comments.)
- In January I wrote about the intersection of SOPA and copyright territoriality. I hope that's a moot issue!
- Techdirt is covering Australia's review of its copyright laws.