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?