From: bhayden@teal.csn.org (Bruce Hayden)
Subject: Re: Out of print material and copyright law
Organization: Colorado SuperNet, Inc.
Date: Sat, 9 Jan 1993 08:40:01 GMT

cameron@symcom.math.uiuc.edu (Cameron Smith) writes:

>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.

Well, the Copyright Act itself does not allow copying if all legitimate
copies are destroyed. So - you are right - the copyright still persists.
As far as I know, today the only way to get something in the public 
domain is to affirmatively dedicate it (since Berne) (I am not including
government works here). I see no other way of doing it.

What you must understand though is that fair use doesn't affect whether
a work has entered the public domain. Quite the contrary. For example,
a work can be quoted from for criticism sake under fair use, but the
same work cannot be copied for financial gain. 

As I see it, one argument for fair use when all legitimate copies have
been destroyed, is that the purpose of copyright law is not to keep
things out of the public's reach, but rather to make it worthwhile
for an author to publish his works. We saw that as a subpoint in one
or both of the recent reverse engineering cases. (i.e. that copying
could be fair use if that was the only way tsee the work). 

Bruce E. Hayden
(303) 758-8400
bhayden@csn.org


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