The Copyright Office’s Amicus Brief from Mazer v. Stein

A short post for World IP Day, now nearly over.  In part of the run-up to the Star Athletica argument, I had a chance to look at the amicus brief the Copyright Office filed with the Supreme Court in Mazer v. Stein some 64 years earlier (and not the Solicitor General – although they are among the names listed on the brief, the Copyright Office is the only office identified on the cover page, and the final signature block before the appendices).

In a brief filed in Mazer the Copyright Office went above and beyond the usual contours of the amicus brief form, offering a detailed history of office registration practice for works of design.  The body of the brief identifies the history of the regulations, and the Appendix B is a partial reprinting of relevant listings in the Catalog of Copyright Entries for 1912-1952.  Perhaps most interestingly, Appendix C of the brief comprises photostatic reproductions of the registrations filed for works of design from before 1909.

The amicus brief has long been available through Gale’s database of Supreme Court Records and Briefs, sourced from the microfilm, but the conversion to black and white rendered the final exhibit essentially illegible.  Accordingly, I’ve uploaded a scan of the US Copyright Office’s original copy of the amicus brief, which they were good enough to allow me to photograph after their wonderful program in honor of today.

Here it is.  Enjoy, and a happy World IP Day.

Transcripts of Supreme Court Oral Arguments from Before OT1955 – They Exist!

Folks who follow the law have usually heard about the Oyez Project, which is the result of the titanic effort to digitally transfer and make available the audio recording of most oral arguments before the US Supreme Court since the October Term (“OT”) of 1955 (a Term being October to June of the following year).  Earlier than that it has generally been stated that only a few earlier transcripts of oral arguments existed for the civil rights cases of the early 1950s existed, and I assumed that was all there was.  Then I was told that a transcript existed for the case of Mazer v. Stein, argued in 1953, and I decided to look a bit deeper.  What I found surprised me.

When I refer to transcripts in this post I’m referring to a transcription of the oral argument before the Supreme Court, as opposed to the “Transcript of Record” filed with the Court which is a typeset version of all relevant documents from the Court(s) below.  The Transcript of Record (and the Briefs) for the vast majority of cases before the Court – including rejected Petitions for Certiorari – are available through the (paywalled) Gale database The Making of Modern Law: U.S. Supreme Court Records and Briefs, 1832–1978, as well as the microfilm it is based on.  The originals are held at the main National Archives building in Washington, DC.  However, these collections only include submissions to the Court in anticipation of the argument, they do not include any record of the oral argument before OT 1955.

Certain traces of older oral arguments were known to exist.  Folks who have read cases from the Supreme Court from before 1880 or so know that there is frequently a restatement of the argument of counsel included in the report.  This was not done by verbatim transcription, but was rather made (as I understand it) by a mix of the notes of the Reporter and the notes of counsel, which were supplied later to the Reporter.  Counsel would also sometimes pay to have their arguments before the Court printed out in pamphlet form, as Salmon P. Chase did for his argument in the Morse telegraph patent case, which led opposing counsel to also print his argument.  The lack of any questions from the bench strongly suggests that these were created from the prepared arguments of counsel, not a transcription of the proceedings.  John Quincy Adams’s 1841 argument in the Amistad case (later dramatized in film) is generally considered the first transcript of an argument before the Court, but it is most likely taken from Adams’s notes, coupled with the notes of another individual present.

At the dawn of the republic limited shorthand techniques made verbatim transcription difficult, something which plagues early transcriptions of Congressional Debates, particularly the Annals of Congress and Register of Debates.  Techniques of shorthand steadily developed in the nineteenth century, and in 1879 Miles Bartholomew received the first of several patents for a stenographic typewriter, which would revolutionize the practice of transcribing court proceedings.1  For this period until the dawn of recording in 1955 the Supreme Court allowed transcriptions to be created at the expense of one or both of the parties if they wanted it, but copies were generally not provided to the Supreme Court except by occasional courtesy (no set procedure seems to have existed).

The major public source of transcripts of Supreme Court Oral Arguments is a microform collection created by the Congressional Information Service, now maintained by Proquest.  It largely mirrors the Oyez Database, but does have a highly selective collection of argument transcripts from OT1952-1954.  I’ve included a list below the jump.  An additional resource, although unfortunately limited to Constitutional cases, is Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law, which is partially available online through Hathitrust.2  This set contains the oral argument for many major constitutional cases, and was created in part using the collection held by the U.S. Supreme Court Library.  I’ve included a list of the cases with complete or partial transcripts included in this collection (from before OT 1955) below the jump as well.

One surprise I had was how many transcripts are held at the Supreme Court Library, and the list I’ve included below the jump is as I understand it the first time this list has been made public.  On reflection it isn’t surprising that many of these transcripts exist – it generally stands to reason that given the expense of litigating a case all the way to the US Supreme Court (high even in those days, especially with the introduction of intermediate appellate review in 1891), it would have been worthwhile to pay for a transcript to be made.  However, the US Supreme Court Library only has about 150 of them from before OT1955.  I strongly suspect that there are dozens if not hundreds more buried in old law firm files, waiting to be found (especially from the 1940s and early 1950s).  A concerted effort among lawyers and scholars to find more of these transcripts might open a goldmine.

Continue reading “Transcripts of Supreme Court Oral Arguments from Before OT1955 – They Exist!”

  1. I didn’t see a scholarly source on this subject in a brief search, so I used this post and a few others
  2. This set was created in 1975, but Hathitrust makes the volumes covering cases until 1923 free to view – an interesting position re copyright.  Presumably they believe that briefs may be covered by copyright but the edited volumes have thin protection at best.  Or they didn’t notice that the set was published in 1975, regardless of the dates of cases.

Announcing the Release of Over 2,000 Pages of Lost Pre-1870 Copyright Records

This post is fairly long, and I don’t want to bury the lede, so here it is: I’ve tracked down and digitized over 2,000 pages of copyright records from before 1870 that had generally been assumed lost.  The whole story follows, but to jump to the records, they are here (part of the GW Law Library Website).
        Since I started this blog in the fall, I’ve occasionally alluded to a number of projects I’ve been working on regarding the pre-1870 copyright records, most notably in my post where I provided links to the transcriptions of a small part of those records.  As the 2015-2016 Abraham L. Kaminstein Scholar in Residence at the US Copyright Office, my efforts were focused on a descriptive and quantitative study of the Office’s records under the Pre-1976 Act, so as to complement Robert Brauneis & Dotan Oliar’s work on the records under the current Act.  Part of that effort has resulted in a study of copyright registrations from 1870-1977, on which I’ve collaborated with Saurabh Vishnubhakat to present at a number of conferences, and which we are currently in the process of writing up into law review format.
        However, while doing that project, I became curious about the oldest records, those from before Copyright was centralized at the Library of Congress in 1870.  Until that point copyright registrations had been made (and the records kept) at the individual Federal District Courts.  In 1870 those records were transmitted to the Library of Congress, but it’s been fairly well-known that a substantial number of records never made it to the Library, and these records have generally been assumed lost.

The Pre-1870 Copyright Records

        The pre-1870 copyright records that made it to the Library were held by the Copyright Office until the 1930s,1  when they were transferred to the Rare Book Room of the Library of Congress, and in 1939 Martin Roberts prepared the first comprehensive study of these records.  His work provides both a narrative description of these records and a checklist of what records came into the possession of the Rare Book Room (pp. 16-19).  The main body of these records were transferred to microfilm, and this is the breakdown of of the microfilm, by number of pages per state:
        Looking at Roberts’s Checklist and these statistics, two things become clear – for New York, Philadelphia, and Boston, whose District Courts together handled 85% of copyright activity before 1870, the Library of Congress has a complete or essentially complete set of the records.  However, for many jurisdictions with a comparatively small volume of copyright activity, records may only exist for the years immediately before 1870, if it at all.  This seemed strange to me, thinking that so many Federal Court records had gone missing, and I began digging into the question.
        What I’ve been describing as a unitary series of records is actually a number of interrelated records.  These are:
  • The actual registrations – Congress provided a specific form for the registration in the 1790 and 1831 Acts, and the Clerk of the Court would either write it out or have application blanks printed where the applicant would fill in the title and other details (all the lost records were handwritten, as only the jurisdictions with a large volume of copyrights bothered to have blanks printed up).  These were generally kept in a record book, meaning that there’s likely no missing records from the period covered by a record book.
  • Title pages – Part of the procedure for registration was the deposit of a title page with the District Court, on which the Clerk would typically make a notation about the registration.  These mostly go in-hand with the registration record, but in a few cases (like the New Hampshire records for 1821-1842 included in this project) they comprise the only record.
  • Assignment records – As now, the Courts would record assignments of copyright and keep records of those assignments.
  • Indices – As the name implies, these are indexes maintained by Courts to assist in locating the copyright registrations they’d made.
  • Account books – the District of Massachusetts and likely others kept records of the funds paid for copyright registrations, and those records are included in this project.

Finding & Digitizing the Lost Records

        One breakthrough was finding the research G. Thomas Tanselle had done on the copyright records in the 1960s, which led to his study Copyright Records and the Bibliographer.  In that study Tanselle identified many records which had not found their way to the Library of Congress, and listed them in Appendix B to that work.  I was able to find all the records Tanselle listed except for the Ohio records for 1829-1842, which have continued to elude me (see below for more on still-missing records).  The work of other bibliographers, including Joseph J. Felcone and Roger E. Stoddard was also extremely helpful.  In addition, using the online National Archives Catalog, older printed sources, and systematic inquiries to the staff at each regional division of the National Archives, I was able to locate copyright records which had not made it to the Library of Congress from seventeen states as well as the District of Columbia.
       At that point, I began to strategize how to get scans of these records, considering that I had no real budget for this project.  Colleagues at law schools local to various National Archives locations were able to connect me with interested law students (who had a camera), and in particular Valerie Snow, Zachary Swartz, and Preston Morgan, who assisted by digitizing materials in Waltham, Atlanta, and Fort Worth, respectively.  A number of colleagues including Brian Frye also assisted with getting scans of these records.
        I am also indebted to the staffs at various regional locations of the National Archives, including those locations, Philadelphia (especially Gail Farr), Seattle, Kansas City, and more.  Thanks are also due to the members of the faculty and law library staff at the George Washington University Law School.  Finally, this project owes much to my colleagues from my time at the Copyright Office.

Making the Lost Records Available

        The staff at the Burns Law Library at the George Washington university, especially Ken Rodriguez, were instrumental in putting together a guide to these records that will be available to all.  The guide to the lost records is now online here, with links to scanned versions of these records.  Let me know about cool finds, or any other cool uses you find for these records.  My ultimate hope is that the Rare Book Room of the Library of Congress will digitize their holdings of pre-1870 copyright records (which I would guesstimate as being 300,000 pages), and when combined with this project, will represent an essentially complete record of copyright (and thus literary, musical, etc) activity in America in its earliest days.
        Special thanks to the Virginia Historical Society, for giving me permission to share my scans of copyright records they hold from 1864-1865.
        One set of records that is not there yet, but I hope I will be able to link to soon, is the records from South Carolina.  They are held by the South Caroliniana Library at the University of South Carolina, and I’m informed they plan to digitize them in the near future.
        Also of note, the records of the Confederate Secretary of State contain information on copyrights from the states that seceded during the Civil War, and have been put online by the Library of Congress.

Records Still Missing

        One interesting question to ask is “what records are still missing?”  The major set of missing records are from Virginia, where records only exist from the District Court in Richmond (the busiest by far in that era) for 1867-1870, although the inclusion of records from 1864 and 1865 in this project ameliorates the problem slightly.  There is also a printed list of copyright records for 1790-1844 from Richmond, taken from a source that no longer seems to exist. I’ve included a list of other states with records that are still missing below, note that it may not be exhaustive – in particular a list of records received from the US State Dept. in 1870 (that I located and scanned from the Library of Congress Manuscript Division) suggests that there may be some substitute records for these jurisdictions for dates after 1831:
  • Connecticut – No records exist from before 1804
  • District of Columbia – No records exist from before 1845 (the State Dept. records indicate records from 1814-1844 may have survived from there).
  • Georgia – No records exist from before 1845
  • Florida – Essentially no records known before 1870
  • Iowa – No records exist from before 1868
  • Indiana – No records exist for between 1841 and 1853
  • Kansas – No records exist from before 1865
  • Louisiana – Records from before 1851 are extremely spotty – seven records from 1837 and 1838 were located as part of this project, but presumably many more existed at one point.
  • Maryland – No records exist from before 1831 (presumably this represents a decent volume of records)
  • Missouri – No records exist from before 1857 (State Dept. records indicates substitute records for 1834-1852)
  • Mississippi – No records exist from before 1850
  • North Carolina – North Carolina was divided into a large number of Districts in this time, and this project uncovered the records from Raleigh, which presumably had the greatest volume of copyright activity in the state.  Scattered records exist from other Districts, including Cape Fear and Pamplico.
  • Ohio – The copyright record book from the US District Court for the Southern District of Ohio at Cincinnati for 1829-1842 is listed by Tanselle, but I have been unable to find it.  The last mention of it was in a WPA Survey of federal records; this is the Form 58SA created by the WPA cataloging the volume.  I’ve been in touch with the Court and the Chicago location of the National Archives, but neither one can find it.
  • Rhode Island – No records exist from before 1831
  • Texas – Almost no records exist from before 1867
  • Virginia – No records exist from Richmond before 1863, as discussed above.  A letter from 1863 indicates that the records had been destroyed in a recent fire (it’s unclear how the list of copyrights from before 1844 was created, presumably the letter was partly in error).

 What’s Next

        Looking at the Guide, people may note that there are also uploads of letter books as well as what I’m referring to as “ephemeral” copyright records, both held by the Manuscript Division of the Library of Congress.  I plan to blog more about those next.

        As I noted callings these records as “lost” is a bit misleading – or at least my wan attempt at clickbaiting.  However, they have been essentially unknown, especially to the legal community, and I hope this will spur interest in a fascinating area where law and culture converged in early America.

  1. This is discussed in Ruth Shaw Leonard’s unpublished 1944 Master’s Thesis at Columbia Univ. “A Bibliographical Evaluation of the Copyright Records for the United States District Court of Massachusetts, 1800-1809.”