From: cameron@symcom.math.uiuc.edu (Cameron Smith)
Subject: Re: Out of print material and copyright law
Organization: none
Date: Fri, 8 Jan 1993 05:45:46 GMT

In article <f9qt023R30Lj01@JUTS.ccc.amdahl.com>
tjc50@juts.ccc.amdahl.com (Terry Carroll) writes:
>[... Much good stuff deleted ...]
>[...] (Hell, I think that when a copyright owner destroys the last 
>remaining authorized copy of a work, there's a good argument that he's 
>renounced the copyright;  the courts have rejected that view, though).
>[...]
>Terry Carroll - tjc50@juts.ccc.amdahl.com - 408/992-2152

I enjoyed the entire article, which I thought was very well presented,
but I wanted to respond only to the point I quoted above.

Now, I'm not a lawyer (nor do I play one on TV...), but it seems to
me that the court is 100% right in holding that the owner of a
copyright has not relinquished the right simply by destroying all
authorized copies of the work.  Consider the following situation:
an author writes a work arguing a certain position on a controversial
issue, and later has a change of heart.  He comes to feel that the
position he argued ably and persuasively was nevertheless quite wrong,
and he is embarrassed or ashamed or angry with himself for having held
it.  We're stipulating that the author *can* destroy all copies of
the book or essay or whatever it was, since that's the whole point of
the discussion, so obviously this can't be an OpEd piece in the New
York Times -- let's assume, then that it was an essay that the writer
circulated privately, in small numbers, among colleagues, and later
retracted and asked to receive the copies back.  Let's assume that
the colleagues all cooperated, and thus that the writer actually did
receive back all *authorized* copies, and that he succeeded in destroying
them all.  But let's assume that a graduate student of one of the
colleagues made a photocopy of the essay before her advisor's copy
was returned to the writer.  We don't have to assume malice; perhaps
she was (legitimately) intending to copy a whole stack of unrelated
papers and this one got mixed in by mistake.  But however it happened,
she created an unauthorized copy of the essay that survived the
copyright owner's destruction of all authorized copies.

Now if Terry's theory were correct, and by destroying all authorized
copies the copyright owner were relinquishing copyright, then wouldn't
that mean that the work lapses into the public domain?  Isn't that
what happens when a copyright owner relinquishes a copyright?
Wouldn't that mean that the writer would then have no basis to
enjoin the graduate student from making the document public
(as he presumably would wish to do)?  If so, I think that's
an unreasonable consequence that makes Terry's position untenable
and the court's holding correct.

Note that I do *not* raise the point of whether the student
was entitled to use the writer's *name* when publishing the essay.
That is probably a separate, and very complicated, issue of its own.
But let's assume that the writer doesn't care so much about the use
of his name, he simply doesn't want an essay in circulation that
defends a position he no longer holds (regardless of whether the
public knows that he wrote it).  Can he stop the use, not just of
his name, but of the words he wrote?  I think he should be able to,
but I think Terry's position would say that he couldn't.

I've very likely made some na"ive oversimplifications in the above,
but I hope the point I'm trying to make is clear.  It seems to me
that copyright is *essentially* an *intellectual* right that is
tied to the work and its expression and not to the physical substance
of any copy or copies of the work, so the destruction of one or some --
or even all -- of the physical copies should not affect the copyright.

I know, I know, there's that bit about "fixed in a tangible medium",
but I take that to mean "capable of being fixed..." or perhaps
"fixed at some time...".  After all, suppose I'm a guitarist working
at home in my den, and I write a song that I think will make $1 million,
but the paper I've just notated it on blows into my fireplace and
burns up.  Alas! the only authorized copy of my song just got
destroyed!  If I then sit back down at the desk and, while it's
fresh in my mind, re-write the words and music, is my composition
now in the public domain because at one prior time I destroyed all
copies of the work?  If the fact that the destruction was unintentional
bothers you, then assume that I wrote the song in the afternoon,
hated it that evening, burned it up intentionally, but then repented
the next morning and wrote it down again.  The point is, once again,
that simply having destroyed all the authorized copies in existence
at one point in time does not dissolve the copyright, and if copies
(authorized or unauthorized) later are re-created, or re-surface, or
whatever, I think the copyright still persists and applies to those
copies too.

Or it should.

Comments welcome.

--Cameron Smith
  cameron@symcom.math.uiuc.edu
Newsgroups: misc.legal.computing,misc.legal