An article in last Sunday’s New York Times asked whether people who use their camera phones in bookstores to make copies of copyrighted material — in author Nick Bilton’s case, pages from books on home interior designs — are “pirates.”
To get an answer, Bilton turned to three academic experts. The two lawyers (the third was an economist) were Julie Ahrens, the director of the Fair Use Project at Stanford Law School, and Charles Nesson, the Harvard Law professor who tried to argue that his pro bono client Joel Tenenbaum was engaging in Fair Use when downloading music files from a P2P sharing network (Tenenbaum lost). Nesson’s views on Fair Use have been considered far-out even by the likes of Lawrence Lessig.
Fair and balanced? Draw your own conclusions, but here’s how the two legal academics cleverly finessed their well-known positions on matters like this: They allowed that the question of whether or not Bilton acted legally falls under the Fair Use factors that a court must consider under US copyright law. But they conveniently omitted the salient fact that of the four Fair Use tests, the one considered most important is this: does the use of the content negatively affect the market for the work? Bilton admits in his article that he and his wife sat on the floor of their local Barnes & Noble, took pictures of selected home designs with their iPhones, and left the bookstore without buying anything.
If that’s not an effect on the market for the work (albeit a very small one), I don’ t know what is.
The point here is not to try to finger Nick Bilton for copyright infringement due to his actions, which by themselves are rather inconsequential. Instead, the point is to explore the more interesting effects of his article. Bilton can be said to have published a recipe that others can use to perform actions that publishers may construe as copyright infringement, and to have done so in a very prominent publication.
Publishers and content licensors have been concerned with this for years. They already use technologies — not mentioned in Bilton’s article — to find copies of content online, such as image tracking from PicScout and text fingerprinting from Attributor. Of course, those technologies couldn’t be used in a personal device such as an iPhone if the resulting images are only used personally, unless hardware makers were compelled to build them into their devices.
But some may liken Bilton’s article to the code for cracking DVD encryption that a few people posted on public web pages — a legal matter that reached a United States Appeals Court. Publishers may grumble. But would they have a case against the New York Times?
I’m not a lawyer, so I invite others to comment with their opinions. Yet here are some factors that may be relevant:
- The analogy to DVD cases like Corley and Remeirdes fails because the latter people publicized ways of circumventing DRM, which is illegal under the DMCA (17 USC 1201). There is no DRM on printed books and magazines.
- What Bilton did is also doable with a pencil and paper, albeit with more time and effort (not to mention conspicuousness to store personnel).
- Neither Bilton nor the Times makes the tools; they’re just telling people about them, and the tools in question — digital cameras — have far more noninfringing than infringing uses.
- There is this little thing called the First Amendment.
On the other hand:
- It could be argued that the Times sought to gain from publishing this “infringement recipe,” since their editors choose articles to publish based on what will sell copies of the paper (or bring traffic to their website). That would introduce factors related to the “inducing infringement” theory behind the Supreme Court’s Grokster decision of 2005, which caused Grokster’s non-liability to be revisited.
- This behavior could be lumped under the heading of photocopying — as if the bookstore had a photocopier on the premises. For example, the Copyright Clearance Center charges corporations license fees for presumed photocopying of periodical articles and other content.
Otherwise, analogous legal precedents and cases in other forms of media are hard to find. Going to a record store and asking the manager to play something on the stereo, then surreptitiously recording it and going home, maybe? Perhaps this is uncharted legal territory.
What do you think?
Copyright and Technology 
Copying is not theft.
I also recommend reading Nina Paley’s interview and pay particular attention to the real world cost of copyright.
Thanks once again Bill for a thoughtful and provocative post!
When I read accounts like this, my mind turns to Esther Dyson’s notion of “intellectual value” which she first discussed in Wired during the Web’s pre-history [1]. Her core argument is that the artifacts we create are mere byproducts of our true value, our intellectual value; someone in possession of the work doesn’t possess the capability to create that work and others like it. The creator’s object should be to bind “works in the field” (my term) to means for accessing their inherent intellectual value; using the buzzword of the moment, every deployed work should have an API for its creator.
I’d therefore like to point out another trajectory that the Biltons’ actions could have taken. Imagine that instead of capturing less-than-ideal images from the books, they had instead captured “bookmarks” for not only the specific images they were interested in, but for the designers, their services as well as the book itself. You can go even further; imagine that they could have gotten access to the designers’ clients, right there in the store!
Those of us dreamers who overdosed on the “copyright as an enabler” mantra have been arguing this for years, but with the advent of powerful mobile computing platforms, high end camera technology and pervasive network infrastructure we’re starting to see some of these attribution-enabled services demonstrated. One example is the new Digimarc Discover™ platform [2], which enables smartphone uses to connect to services related to the images, videos, audio and even objects they are experiencing.
Had their mobile devices been equipped with this sort of technology, the Biltons might have saved time and gotten much more value from their bookstore experience; they might even have been convinced (from direct access to clients’ stories online) to buy one of the books, for a particular designer the were likely to contact in the future. Or, maybe, they could have left the store with an appointment!
The value of the photograph was not the photograph itself, but the talent and capabilities accessible “through” it. The point should be finding ways to connect “users” to that value.
[1] Esther Dyson, “Intellectual Value.” WIRED 3.07 (July 1995)
[2] Digimarc Discover™ information at Digimarc Disclaimer: I have done business in the past with Digimarc, but the views expressed in these comments are my own.
It would seem, on the surface, that the question is whether or not Nick should have purchased the magazines. Assuming one reaches the conclusion he should have (whether to avoid breaking copyright law, or simply as a matter of good social behavior), where does his responsibility stop? Take, for example:
1) A library. One clear use of a library is to provide materials, often free of charge, to aid in one’s research, but rarely with an option to purchase the materials themselves. Would photographing materials in this context constitute the same conflict?
2) An art gallery/museum. Perhaps he wishes to photograph the pages of ancient manuscripts. The content is for sale, but at antique/historical prices. Is Eric expected to pay millions of dollars for the physical goods, or is it considered acceptable to make free copies photographically?
At what price does this behavior become reasonable?
I see this as an example of form over substance and copyright being taken too far.
There can be no real economic impact here as it is highly doubtful that they would have bought all of the magazines that the looked at/photographed.
Nor were they photographing for any commercial purpose. I presume they were looking for ideas and would then independently use those ideas to come up with (alone or with a designer) what they really wanted.
Granted they could have (as you suggested) merely copied the photo using pen and paper. That would have taken time but would not arguably been an infringement. We are left then with the reality of a potential claim for infringement because they used a time-saving device. This is form over substance.
I would doubt that the kitchen designs themselves were truly unique. Ideas are created using the ideas of others as building blocks. That is how things advance.
The real issue is what are the publishers doing to make their publications more relevant.
Paul,
Thanks for writing.
Just as a matter of clarification, the point I intended to discuss was not whether Nick Bilton infringed copyright but whether the New York Times might be secondarily liable by publishing an article on how to do what Nick did.
I am not taking a position one way or another, but I thought it was an interesting matter to discuss.
– bill.
[…] actions but his article that should be held up to scrutiny, writes Bill Rosenblatt at Copyright and Technology. By describing how easy it is to photograph book pages in a store, Bilton has published an […]
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