Guy Rub Explains that Copyright is Alive and Well…

Benson: You are tuned in to Copyright Chat.  Copyright Chat is a podcast dedicated to discussing important copyright matters. Host Sara Benson, the Copyright Librarian from the University of Illinois, converses with experts from across the globe to engage the public with rights issues relevant to their daily lives.  Today, we have Professor Guy Rub with us remotely. He works for the Ohio State University Moritz College of Law. Welcome.

Rub: Thank you. I am happy to be here, Sara, virtually.

Benson: So today, I wanted to talk to you about a recent paper that you wrote, but first, I wanted to ask you a question that I asked all of my participants on my podcast which is, how did you get interested in copyright law?

Rub: Well you see. It happened when I did my PhD at the University of Michigan, and I had various interests there, but at some point I got interested in copyright. It’s a very complex set of rules and standards and legal principles. I like the way that it interacted with so much other stuff, with so many other areas of the law, but also with so many things that has nothing to do with the law or supposedly, nothing to do with the law, like art and movies.  So it just happened, and I like it.

Benson: OK, and I agree with you that it’s fascinating how much art and law intertwine in copyright which is always fun. So I read with interest your most recent paper titled, “Copyright Survives: Rethinking the Copyright Contracts Conflict,” which is forthcoming in the Virginia Law Review. And I often tell folks that contract trumps copyright. Is that too simple a statement?

Rub: It’s likely. It’s almost. When they conflict, you’re mostly right. Wow, that was a difficult statement to make.  Yes. When I can write the contract, and if we enforce it, that contract can override what the arrangement that are said by copyright law. That is correct.

Benson: OK.

Rub: Let me give you an example. We have an arrangement, we have many arrangements like that, in other areas of the law, and the law sets sort of a baseline, and we can agree on something else. You know, I can, between me and my neighbor, you know, the law says what right I have and what right my neighbor has, but if we agree on something else, that something else can sort of change the underlying arrangement.

Benson: Right, and so where is this copyright contacts conflict that you’re addressing in your paper, in what realm does that exist?

Rub: Well, the reason that it exists is because there are many people, and we can talk why and where they’re coming from, who don’t think that contract should always trump copyright. They believe that, you know, we can’t contract about everything, right, there’s some stuff we’ve all agreed that we can write contracts about. The easier example is, you know, slavery. I can’t write the contract that I sell myself even if it’s agreed upon. So it’s possible, at least, that what some people suggest, that some arrangements with in our corporate system should not be subject to contract, cannot, basically, in that when those two are clashing, at least in some area, some people say, you know, copyright should actually triumph, and so, if I write an agreement, that’s the argument, right, if I write an agreement that suggests that I’m waiving my fair use rights, maybe the argument is, well that’s not true. We should not let the contract trump my fair use rights. They’re unwaivable. That’s the fault of the technical term, right. So that’s where the conflict is, the conflict is, if you accept the idea that, you know, it doesn’t work that way. So fair use is the big one, the stuff that copyright does not protect, like ideas and facts, so it’s easy to say that copyright does not protect them. Who knows, it’s actually a difficult question, what are ideas, but once we identify something as an idea, it’s not protected by copyright, but, as much freedom as a want to write a contract that protects ideas or facts, that’s a difficult question. That sort of goes to the heart of the question, what do you think copyright is all about, just initial arrangement or something more than that.

Benson: This is fascinating, and I think I would agree that we shouldn’t allow folks to contract away their fair use rights, because that seems inimical to the purpose of section 107, which is to carve out that exception to copyright, and if we can easily just contract that away, that’s a problem, but how do we enforce that idea, I guess, because quite often people do it, engage in these contracts. I know, as an author, if you grant all of your rights to a publisher, for instance, in your work, you no longer personally even have the fair use rights that maybe other people can use your work for fair use, and you, having engaged in that contractual one-on-one relationship with that publisher, can’t use your work, so would you argue that that is an unfair contractual term?

Rub: So they’re ways to do that. First of all, I’ll talk about my view in a second, but those people who want a very strong copyright system that does trump more and more contractual arrangement, will have several answers. The answer is, first of all, I just might not enforce the contract as a matter of contract law. It’s against public policy maybe, or it may be unconscionable. However, the most common way in the United States to deal with those conflicts is for preemption. The argument is that, copyright, there is a technical aspect and a substantive aspect to it. The technical aspect is copyright is federal law. Contract law is state law. We know that as a general matter, when there is a conflict between federal and state law, federal law triumphs, right, the state law has to basically be preempted and not enforced when federal law answers that question. So that’s the argument, and that’s most of the litigation on this question revolves around preemption. The argument is, this state law cause of action, breach of contract, is just preempted by federal law, and therefore federal policy, basically, is to get priority over freedom of contract which is a concept coming from state law.

That’s the main issue. That’s where my paper goes. There are almost three hundred paper a decision, court opinion, that deals with that specific question.

For me, I mean, I think it’s a difficult question whether you can contract away fair use. What my researchers found was that those three hundred opinions don’t really contract away fair use. The clashes are, with one exception, that I can talk about in a second, which is reverse engineering, putting that aside, fair use is not the issue. We were afraid that fair use would be an issue, right, but it’s more innocent clashes between the two. I write the software set, I let you use the software, you can’t let another person use the software, and now you did, and now I sue you for breach of contract, right, or I’m going to tell you an idea, it’s all protected, that’s the most common one is this one. I’m going to tell you an idea for, let’s say, a movie, and you’re a movie producer, and we agree, and sometime, you place in it something explicit that that if you use the idea, you need to pay me for it, and the document is never about how much you need to pay, the argument, do I even need to pay. And you tell me, thank you very much, I don’t want this idea, and then you go around and produce the movie. Now I don’t have a cause of action in copyright law because it’s an idea, and we know ideas are not protected. Can I sue you for breach of contract? When I do, you will say, with all due respect, do we have federal policy of keeping ideas in the public domain, and therefore your cause of action for breach of contract just cannot stand. It’s inconsistent with federal policy, and that this bill, that question came up in the case that they filed, maybe. I don’t have the exact number, seventy times, but that’s roughly the number.

As a general matter, most courts say no no no, that’s fine, but that’s a difficult question, right. That’s the common type of clashes that we see in the case law. I agree that there are very difficult questions, I think if we would see agreement in which people promise not to create a parody of one another’s work, that will start to be really troubling. I can see that type of litigation.

Benson: So interestingly, you mentioned a contract about the public domain, and that to me, is one of the most fascinating thoughts is, to me, the public domain is, by definition, owned by everyone, and so you shouldn’t be able to make a contract saying, for instance, I found this book. It’s in the public domain, but now I’m going to allow you to use portions of it or for this fee or what have you. It seems, at that point, unless you’ve added any benefit, you know, anything to the work, you shouldn’t be able to contract about the public domain. Is that a correct statement?

Rub: Well, it’s a difficult question because we need to start to break down this example.  So the question that arises, if you’re telling me, I’ll give you this book that is already published, but here is all the limitations we need to agree to. The first question I would ask myself is, why would anyone agree to that?  Right. I would go to the library, and take the book.

Benson: You say this, but it happens a lot, and here’s where it happens. It happens with online digital collections of public domain materials through libraries where they have digitized, and they think that they have spent enough manpower, I guess, digitizing it that they should get a cost recovery, and I don’t personally have a problem with the cost recovery. I have a problem with them charging more than the cost recovery. Right, because at that point they’re charging for access to a public domain item that is owned by everyone.

Rub: Yeah, that’s very interesting, but they do provide a service, right, the fact that it’s available in the digital form, I mean, the physical form everybody can still get, but they provide a benefit in the digital only. I think that’s very interesting. Let me give you another example if you tell me if it sounds the same. Let’s assume that I have a Van Gogh painting in my basement. I wish, but let’s assume that, because, you know, those are worth one hundred million dollars, but if I have that, and I want to give it to a museum, now this is clearly the public domain. Those things were created two hundred years ago or more, so that that’s obviously in the public domain.

Can I have limitations? And we see it in museums, right, you go to a museum, and they tell you, no pictures in this room, and I sometimes, because when people tell me, no I usually ask a question, I asked why, and they tell me, no, the person who gave us that picture to show here, that’s the requirement that they made that we won’t let other people take a picture, and you said yeah but it’s in the public domain. So, I think you’re touching on a very interesting question, and that’s things that are in the public domain, but are difficult to access in the public domain, right, because it’s easy to access in the public domain, I would not get your contract, I would just get it myself, but when it’s something more difficult to sell, the digital file that other people just don’t have it. If I wanted to have it, I have to agree to the contract, or that painting, that I have the only painting, if you want it, that’s my terms. Yes, that’s a situation in which the item is in the public domain, but it’s not easily accessible, so the contract is basically a contract for access, right, and I think that’s the situation that we have in mind. Yes, that’s really, I mean, it’s this all the time, right, with secret information, for example, which is not exactly the same but also, you know. I have some secret information that is not protected by copyright. It’s factual information. I can give it to you only if we’re going, I mean, I won’t tell you what it is unless you agree to all those terms that I want, and yes, I think that’s an interesting and difficult question, but I think we should recognize the fact that we can ask ourselves, if we don’t enforce the contract, is this better or worse? Because some people might not give us the information, or in the example you gave, some people won’t digitize the work if they can’t use it later on, right.

Benson: Right. I think that’s true.

Rub: It’s a difficult question. I wouldn’t think, right.

Benson: Yeah.

Rub: That’s true.

Benson: I agree with you that you should be able to take photographs of the public domain painting, although I do see the one reason for not allowing, at least, flash photography is because of preservation of the actual work, right, because I think the flash can affect the work, but if they’re just saying no photography at all then at that point it becomes unreasonable in a way. Because public domain works, in my view, are really meant to be owned by everyone not by any particular person so it’s problematic.

Rub: If the person that’s has the Van Gogh his basement or in his house won’t give it to the museum unless the museum agrees to enforce those terms. So are we as a society, do we want society, I mean, maybe that’s the price we have to pay as a society to have that exhibition, but I don’t know, I mean, it’s a difficult question.

Benson: Well, yeah, it is. It is, and would they be able to get, I guess, how much contract law and copyright law conflict for instance, I wish, we could get a judge to say, no, you can’t hold on to that Van Gogh, right, that that has to go back, that has to be publicly available.

Rub: I don’t know about that.

Benson: Hey, I just wish…

Rub: I don’t know about that, Sara, this is private property, now we’re having judges…

Benson: Yeah, now, we’re getting into that yeah but that’s where we’re…

Rub: Right?

Benson: Right. That’s where we get into these issues, right, is that the museums also quite often paid a lot of money to procure these documents, maybe when they were not public domain items, and when the copyright expires, even so, they are running on low budgets, etc. So there are a lot of considerations, and yes. No, in my ideal world, public domain items would just be easy to access for everyone, but true, that’s a little unfair, right, to the people who have been collecting them when they weren’t public domain. I mean, at some point, they were protected, and they may have paid a lot of money for it, so I understand that, and there’s an inherent conflict there, and for librarians and museums and libraries, that’s also a that’s a conflict, too.

Rub: Or they spend a lot of resources getting, exposing that public domain, you know, think about lost piece of art or archaeologists who are just digging somewhere. I mean that person cannot know of copyright before they find, although, there’s a pretty separate issue about that, but as a general matter, they cannot, but that doesn’t mean they should have no rights whatsoever because then they won’t do the work.

Benson: Oh yes, that is the inherent conundrum between fair use and creator’s rights, as well, right, is that we have to have an incentive, or else no one will do anything, and so if fair use eats up everything, then no one would create things, so. Well, this has been really interesting conversation. It doesn’t come up too often in my work in terms of preemption, but I found it really useful as a thoughtful exercise, so I thank you so much for engaging with me about this topic today, and I really encourage everyone listening to read the paper when it comes out in the Virginia Law Review. It’s a worthwhile read, and it’s very well thought out. Thanks for being on the show today.

Rub: Thank you, Sara, I really appreciate it. That was a really, really engaging and fun conversation.

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