30
Dec
2019

The Copyright in “Little Women”

“An honest publisher and a lucky author, for the copyright made her fortune, and the ‘dull book’ was the first golden egg of the ugly duckling.” – Louisa May Alcott, 1885

With a new movie version coming out, Louisa May Alcott’s novel Little Women is once again in the news, often with some conversation of how Alcott’s publisher urged her to keep the copyright in her work, earning her a fortune. But the story of her copyright is rarely explored beyond that, and I think it’s an interesting one, in that it spans multiple eras of copyright history in a way only a few other works did. It’s also a useful research case study for those interested in using copyright records for historical and literary research. I’ll admit I haven’t seen the film yet, but I’m told that it has a great scene about copyright – I’ll have to check it out.

I’m also informed that the Library of Congress has an exhibition of some of the copyright deposits made by Louisa May Alcott, catch it while it’s still up. The discussion continues below…

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10
Dec
2019

An Inventory of Inventories of Federal Court Records from the WPA

As I’ve been researching lost copyright records from the District Courts (AKA pre-1870 copyright records), I’ve found that the “Inventories of Federal Archives in the States” done by the WPA are invaluable. Series 2 – federal court records – is especially important to those interested in legal history, tracking where things were before it was accessioned to the National Archives (which was only created a few years earlier). In many cases these are more detailed than the National Archives Finding Aids, and/or describe material which didn’t make it to the National Archives.

The usefulness of these inventories is focused in cases like Ohio, where the 1829-1842 copyright record book is listed in the inventory, but hasn’t been seen since. I haven’t yet located this record book (and may not), but having a reference of where things were before the transfer to the National Archives is invaluable, even if occasionally frustrating. Given that these inventories are generally available online but haven’t been organized in one place, I decided to provide such a resource – for my own purposes as well as to help others. In many cases there’s a survey note as well, for instance this is the survey note on the now-missing Ohio copyright record book.

A preliminary checklist was prepared of all inventories produced for this project, which I’ve scanned and reproduced here. Note that Alaska and Hawaii were not yet states and thus were not included. The manual for creating these inventories is also available, here. The Research Bibliography of WPA Publications also lists these, should it be helpful.

Also, although it wasn’t part of the WPA’s inventory, the 1962 inventory of records of the US Supreme Court is here. The list of states follows below the jump.

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25
Nov
2019

How to Research a Supreme Court Case (to Excess)

Over the past decade I’ve researched and written about the history of a fair number of U.S. Supreme Court cases, mostly in the IP field. Over this time I’ve learned a fair bit about what resources are available, and also recently procrastinated a writing project and developed a research tool to make finding the case file number much quicker. All the places you can go (that I know of) to learn more about a case are below – and if there’s things I learn (or just forgot to mention) I’ll add to this as time goes on.

Note that all the steps below aren’t necessary in all cases, and there are often additional possible steps as well. This is meant as a general guide, not as an exhaustive one. Also, many of the steps outlined here can apply to State Supreme, State and Federal Appellate, and trial and administrative adjudications. There’s been so much digitized in the past two decades; the time required to take many of these steps is surprisingly minimal.

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24
Oct
2019

Mini-Post: A Brief and Notes of the Argument in Wheaton v. Peters via Justice Baldwin

I posted recently about Banks v. Manchester and Callaghan v. Myers, the two 1888 cases about copyright in judicial opinions. However, as I noted, the issue is anchored by the 1834 Supreme Court case of Wheaton v. Peters, the first copyright case the Court took, and the wellspring of law regarding the uncopyrightability of legal opinions. With oral argument in Georgia v. Public Resource on the horizon, I wanted to share some more of my findings regarding Wheaton. Read More

10
Oct
2019

Copyright in State Legal Materials – Looking Back to 1888

The U.S. Supreme Court is set to hear argument in Georgia v. Public.Resource.Org Inc. in about two months, with petitioner’s briefs already in, and respondent’s briefs were submitted yesterday.  The question presented is fairly simple and a matter of law – “Whether the government edicts doctrine [(that they are not protectable by copyright)] extends to—and thus renders uncopyrightable—works that lack the force of law, such as the annotations in the Official Code of Georgia Annotated.”

As the 11th Circuit noted below, in holding that the annotations could not be protected by copyright, the Supreme Court addressed this question three times in the nineteenth century, but not since.  Those three cases will be what the Supreme Court will be basing its decision on, but two of them are quite obscure.  So as not to bury the lede, the archival contribution of this post is that I’ve scanned the briefs from one of these cases – Banks v. Manchester – and shared them online (the other two were already available)- you can access them here.  I also scanned the case file from the U.S. National Archives, comprising mainly correspondence between the parties and the Court – you can download the PDF here. Read More

23
Aug
2019

Video Post: Irwin Karp on Drafting the 1976 Copyright Act

While everyone eagerly awaits the next full post here, I wanted to share a video I found of Irwin Karp, “legendary and curmudgeonly counsel for the Authors Guild and Authors League,”1 talking about the process of drafting and negotiating what would become the 1976 Copyright Act. There’s extensive discussion in particular about the fair use provisions at what would become 17 USC 107, and the lack of a general exception for educational purposes. Digitization by Library of Congress Motion Picture Division.

19
May
2019

Fifty-Five Years of Software Copyright

Greetings from INTA 2019 in Boston! It’s been a few months since a post, entirely my own fault of course, but today is a good day to bring readers something new – the Copyright Office announced 55 years ago today (May 19, 1964) that they would begin accepting registrations of software copyrights. This was of course an enormously consequential decision, and while it has been written about before, as far as I know a proper history of the era has yet to be written (Pam Samuelson’s article The Uneasy Case for Software Copyrights Revisited has a lot of useful material on the subject though). As such, I thought I’d provide a few aspects of the early story of software copyrights that some may not be aware of.

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1
Feb
2019

An Archive of Patent Office Rules and Procedures

This isn’t really meant as a traditional post, but I’ve noticed that there isn’t one organized place to view older versions of the pamphlet issued by the Patent Office providing rules and procedures for filing patents and other interactions with the Patent Office. These rules are now housed within the CFR, and the Patent Office is now the USPTO, but it’s still useful to understand the rules for filing a patent when looking at an old patent. The bulk of these are from Hathitrust, but I’ve gone to the Library of Congress and elsewhere to digitize many of the older sets of rules not available online anywhere, in an effort to create a complete resource for people interested in the subject. This resource goes in hand with the list of copyright rules manuals I’ve previously posted.

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21
Dec
2018

INS v. AP at 100 – feat. the oral argument

On December 23, 1918, the U.S. Supreme Court issued its decision in International News Service v. Associated Press, reported at
248 U.S. 215. The case involved the Hearst-owned International News Service, which had been barred from the front in World War 1 for what was perceived as unduly sympathetic reporting on the enemy. However, INS continued providing its news to west coast papers by reading stories from east papers served by the rival Associated Press and wiring their own rewritten stories cross-country. Although the war was over by December 1918, the broader implications of the legal claims lingered, and the Supreme Court held that copying of news stories was unfair competition even if there was no copyright infringement (since the stories were all fresh rewrites and only the facts were being copied). Justices Holmes and Brandeis both dissented.

The story of this case has been told before, most notably by Douglas Baird in his contribution to Intellectual Property Stories. However, what I believe will become the new standard history of this case, and of the many issues of legal protections for news more generally, is an upcoming book by Will Slauter, entitled “Who Owns the News,” coming out next month from Stanford University Press. I’ve copied the description of the book below, and I believe it will be mandatory reading for anyone who would be so moved to check out this blog.

You can’t copyright facts, but is news a category unto itself? Without legal protection for the “ownership” of news, what incentive does a news organization have to invest in producing quality journalism that serves the public good? This book explores the intertwined histories of journalism and copyright law in the United States and Great Britain, revealing how shifts in technology, government policy, and publishing strategy have shaped the media landscape.

Publishers have long sought to treat news as exclusive to protect their investments against copying or “free riding.” But over the centuries, arguments about the vital role of newspapers and the need for information to circulate have made it difficult to defend property rights in news. Beginning with the earliest printed news publications and ending with the Internet, Will Slauter traces these countervailing trends, offering a fresh perspective on debates about copyright and efforts to control the flow of news.

Book Page at Stanford University Press

As part of his research for his book, Will located the transcript of the oral argument before the U.S. Supreme Court a hundred years ago in the archives of the Associated Press. He’s graciously allowed me to share the transcript here, part of my project of locating pre-1955 transcripts of U.S. Supreme Court oral arguments. It’s fascinating to see the argument, which is very different from the style today – the advocates speak much more – and the justices ask many fewer questions. As far as I’m aware, almost no-one has been aware of the existence of this document, and it almost certainly hasn’t been shared before. Enjoy!

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