June 5, 2004  ·  Lessig

More from Jerry Lobdill, who writes about his own wonderful experiences with the existing copyright system:

I am a small businessman. Among other things I am interested in publishing a few things. I have multiple interests, so the subjects I’m interested in vary. One of my interests is the history of the US, especially the era of the wild west.

I have discovered an out of print book that is extremely important to students of the wild west. It is extremely rare and was published only in first edition in 1928. This book was renewed in the name only of the author in 1955, and under present law will not enter public domain until 2022. (According to my research no published works will enter the public domain until 2019.) However, the author died in 1963. He had no children, and his wife died in 1976. Her will does not mention any copyrights. I am obtaining a copy of the will of the author but have not seen it yet. I have had the US Copyright Office do a paid search, and all they have on record is that the author renewed the copyright in 1955. There is no record of transfer of ownership on file.

I inquired of the original publisher if they knew anything about the author’s copyright and was first told that they knew nothing about the book of interest. Then, they said they thought they owned the copyright but were investigating to be certain. Then I was told that they definitely owned the copyright. When I asked for a xerox of the copyright transfer document that law prescribes, transferring the renewed copyright to them, they refused to produce it, saying that their policy is not to provide such information to “private parties”. When I explained that I was thinking of republishing the book and that the US Copyright Office records show that the renewal belonged to the author only, and that I needed proof of their claim before negotiating for publishing rights, I was told that I was too small a publisher to qualify.

So…here I sit, with an extensive file that contains no transfer document. The US Copyright Office has no record of a transfer of ownership, and I feel that there is a strong possibility that the publisher is lying about ownership. If so it would not be unusual in today’s environment. They probably hoped that I’d negotiate with them without proof.

As a result of this situation I have spent money and time and have only a written assertion of ownership without proof. Were it not for this unsupported claim I would know that there was a transfer or that there is no one alive who is likely to challenge my republication of the book.

The law is flawed in my opinion if it requires a written transfer of ownership (like real property) but does not require a claimant to produce the proof of ownership except in the context of a copyright infringement suit.

If you agree, what can be done to get the law repaired? The way it is now it invites and rewards false claims of this sort to the detriment of reasonable use of works that are effectively public domain.

(cf. “It’s simple.)

  • Joseph Pietro Riolo

    Also, be sure to read state law on the distributing
    properties after wife’s death. It is very likely
    that someone or local library still owns copyright
    in his work. It could be the state that still holds
    copyright. If the state still holds copyright,
    you may be the lucky person to acquire the copyright
    (and here is my advice: dedicate the work to the
    public domain rather than waiting for the copyright
    protection to expire).

    There are many ways that the copyright law can be
    improved but you are facing the multitude of authors
    and artists who want to maintain copyright down
    to the last second of the copyright term regardless
    of how senseless they are.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  • http://icite.net Jay Fienberg

    Wow, that is a good description of what it is like trying to get a handle on book rights.

    My firsthand experience trying to get reprint rights (when i was a librarian) was that it was deeply frustrating and time consuming to track down rights holders for most books. We used to consider ourselves extremely lucky when we tracked down someone who was confident that they held a specific book’s copyright and could grant reprint rights.

    Over six years, I think we managed to track down 50 titles’ rights holders out of about 500 titles we were looking to get permission to reprint. (Of course, about half of the rights holders we found were publishers, and many of them had policies that were prohibitive to small non-profit reprint efforts–”out of print in their control” or “a lot of money” were the only options they’d consider.)

  • Steve

    May I suggest a declaratory judgment action against the publisher. The lawsuit shouldn’t have to go very far to smoke out the facts of whether the publisher holds the copyright or not.

  • Jerry Lobdill

    Thanks to Steve, Jay, Joseph, and John for their comments and suggestions above.

    Steve writes: “May I suggest a declaratory judgment action against the publisher. The lawsuit shouldn’t have to go very far to smoke out the facts of whether the publisher holds the copyright or not.”

    My response: I don’t have money to invest in this kind of fishing expedition. Would such an action be of general benefit to the cause of righting copywrongs in the US? If so, maybe someone would be interested in donating to the cause(?).

    John writes: “Might the writer be interested in using this as a test case to see whether that Sonny Bono “libraries and archives” exemption (17 USC 108(h))
    will hold up?”

    My response: No, not really. To put it into an electronic format requires labor which I’m not interested in donating without some return on that investment–at least a decent per hour rate for my work. I’m not in this for hope of profit, but even in non-profit enterprises labor expenses are allowed. Also, I’m assuming that by “test case” you mean that I’d go ahead and do it and cite 17 USC 108(h) as a defense when I’m sued, right? Ahhh….no, I can’t afford the exposure.

    Re Joseph’s comments about state law: This is an interesting idea. Do you mean that somehow the copyright to the author’s works could be bestowed on a library or claimed by the state in the absence of mention in the author’s will? please elaborate.

  • Steve

    It might be a good pro bono project for Stanford Law School.

  • Tim

    What I’m curious about was the phrase “too small a publisher to qualify” – where is the line drawn? Do they mean you’re too small for them to bother proving their ownership to?

    My suggestion: publish it. To prove they own the copyright, they will have to produce said proof in court. They’ll only do that if it is worth enough money to them, therefore if you become a large enough publisher to qualify :-).

  • Joseph Pietro Riolo

    To Jerry Lobdill,

    Yes, it is possible that the copyright in works
    could be transferred to a library, museum, or
    even other entity. This is the reason why I
    suggest you to look up the state law on
    distributing intangible properties if will
    says nothing about them. Generally, state laws
    have very long list of relatives in the order
    that they should receive the properties. In
    very unlikely case that there is no relative
    left to receive the properties, judge may
    have the liberty to decide where they should
    go to, if allowed by state law. Any unclaimed
    properties are up for sale, if required by
    state law. In case they are not up for sale,
    state, by default, may hold the properties,
    waiting for someone else to acquire.

    I have no specific knowledge on how the
    distribution of properties, both tangible and
    intangible, works. I only have vague, general
    idea of how it works.

    It seems that you have to do a very long
    research to find exactly where the ownership
    of copyright goes.

    Tim’s suggestion to publish the book without
    finding out who owns copyright is a risky
    business and I would recommend not to take
    it.

    Steve’s suggestion on using pro bono sounds
    very good to me, only if there is no case
    similar to your situation that has been
    addressed by state or federal court.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  • Jerry Lobdill

    It makes no sense at all to me that intellectual “property” that falls under copyright law has no central registry of ownership but patents, trademarks, vehicles, and real estate do. Copyright law makes every copyright search a potentially impossible task. If you don’t find the owner, it doesn’t mean you won’t be sued if you use the material. This is an insane law.

  • jerry lobdill

    More on the notion that ownership might revert to the state.

    Suppose an author dies leaving the simplest of wills, bequeathing all his property whether real, personal or mixed to his wife (no specific identities of property). There were no children either. Then his wife dies years later leaving a simple will in which all her possessions are enumerated, but no copyrights are mentioned in the “all property whether real, personal or mixed” clause.

    There is no hint of what happened to all the copyright “titles”, “deeds” or whatever we should call them.

    Suppose, in fact, those copyrights were never transferred and the ownership papers are mouldering somewhere in a box. The state doesn’t know about them and neither does anyone else. But suppose the author’s publisher claims ownership but will not produce the “title”.

    With the law as it now stands there is no way to sort this all out, and the law effectively favors the claimant with the deepest pockets.

  • Steve

    Jerry -
    You are exactly right about the problem. And there is no easy solution. The most perilous risk is that the ultimate owner of the copyright could pop up at any time, if you were to try to publish. My suggestion about a brief declaratory judgment suit against the previous publisher is aimed only at eliminating the most visible risk — if it turns out, as you suspect, that the publisher does not have any evidence of ownership of the copyright. Again, it seems like a good clinical project for a Stanford Law School (or Boalt) class and professor on a pro bono basis, if you can interest them. If you like, I could also find out if a USF copyright class might be interested. If so, email me.

  • Joseph Pietro Riolo

    To Jerry,

    Insane is just one word in the very long list
    of vocabulary to describe the U.S. copyright law.
    We had a wonderful system of copyright registration
    where everyone must register his work to gain
    copyright. Alas, it is gone. The copyright in
    your comments that are posted to blog will last for
    70 or more years. What is the chance that anyone
    who finds your comments very interesting will be
    able to locate your heirs?

    Back to the problem at hand…

    I doubt that there is no living heir left to receive
    the copyrights and other properties.

    Out of my curiosity, I googled for state law for my
    home state Pennsylvania and found this web page:
    http://members.aol.com/DKM1/20.Cp.21.html
    The first to receive entire estate is the offspring
    of wife or husband, then their parents, then
    offspring of their parents, then grandparents, then
    offspring of grandparents, and finally to the
    Commonwealth of Pennsylvania. We are talking about
    cousins! There is a good chance that the author or
    his wife has some distant cousins somewhere in the
    U.S.

    You have different options to address the problem.
    Several options were already mentioned (use pro bono
    service, do very long research to find copyright
    holder, give your book to library where it can
    reproduce it for other libraries, wait for copyright
    to expire). I would add one more option: Write a
    letter to your Congress people and complain about the
    problem. Canada’s copyright law, I believe, has a
    provision where you can print book if you can’t find
    copyright holder with reasonable effort. I think that
    it requires you to put profit in escrow.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  • jerry lobdill

    Joseph,
    I understand your concern. However there are two things that make it rather unlikely to be a problem in this case. The first is that the author’s will does not allude to the possession of any copyright, nor does his wife’s will (who died more than a decade later). What evidence would lead any court or any potential heir of the surviving wife to seek possession of a property for which no “title” has surfaced and the author has not declared in the will? Wouldn’t it be necessary to have proof of ownership by the author at death? And wouldn’t present law presume that if such proof were not produced with the will that ownership could not be assumed? The second thing is that the author was an octogenarian when he died and neither he nor his wife had surviving siblings.

    If, in fact, he never transferred ownership of the copyrights of his books it is most likely that no one would come forward to contend infringement if I were to publish…except for the publisher who refuses to prove ownership.

    I hereby put all of my comments on this blog in the public domain. (I’d prefer not to have to make such a declaration…as if my comments had commercial value :-))

  • Joseph Pietro Riolo

    Hi Jerry,

    I have some lingering doubt about living heirs but
    I will take your words and assume that the copyright
    goes to state.

    It seems to me that of all property rights (both
    intellectual and non-intellectual), copyright is the
    most indestructible one. No matter how much it is
    neglected, no matter how much it is abandoned,
    copyright simply does not disappear. Only time
    can destroy it (that is, when copyright term ends)
    or a very overt, affirmative dedication to the
    public domain can obliterate the rights in the
    copyright.

    It does not matter if will is silent on copyright.
    I believe that copyright belongs to the category of
    personal property. If will does not say anything
    about copyright (or any other property), it is handled
    according to state law. For my state and assuming
    that there is no living heir, Commonwealth of
    Pennsylvania could own the copyright even though
    there is no action from the state on assuming the
    ownership.

    In this area where uncertainty abounds, people usually
    evaluate the risk of being caught with copyright
    infringement. People infringe copyrights daily but
    copyright holders do not rebuke or sue them because
    their copyright infringement never appear on the
    holders’ radar. But, as what Steve said, the true
    copyright holder could pop up at any time.

    I am very sure that there must be some cases out there
    that are similar to your case but I don’t know any of
    them. You may want to make an inquiry about the cases
    at the mailing list CNI-COPYRIGHT. See
    http://www.cni.org/forums/cni-copyright/cni-copyright.html
    for information on joining the list.

    Dedicating your work (such as comment) to the public
    domain is a very personal decision and should not be
    made very lightly but is sorely needed in this age where
    the percentage of knowledge still remain under copyright
    continues to dwarf the percentage of knowledge that is
    in the public domain. If you do this with the full
    knowledge that your comment may be a moneymaker for
    others, so be it. Otherwise, retain your copyright.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  • jerry lobdill

    Hi Joseph,

    I take your points about the survival of copyright, the risk that an unknown owner could pop up at any time, and the seriousness of the decision to dedicate my remarks here to the public domain.

    The author’s will as probated proves nothing about the ownership of copyrights he may have at one time possessed, as I understand it. He may or may not have transferred ownership. And under current law a seemingly bona fide unknown owner could pop up at any time within the copyright term. Further, that unknown owner’s claim might be contested by another claimant who holds yet another document that purports to transfer ownership. Additionally, while a state law may exist which places copyrights for which there is no known claimant in the hands of the state, the very existence of such unclaimed copyrights is unknowable under present law. At least that’s how it seems to me.

    The solution to all these problems would seem to me to be a legal requirement for a central searchable registry of copyright ownership where all copyrights and transfers of copyright ownership must be recorded.

    Not being a copyright lawyer, I’m not certain I’m right and would be grateful to be corrected if I’m wrong.

  • Todd Jonz

    Joseph writes:

    > Canada�s copyright law, I believe, has a provision where you
    > can print book if you can�t find copyright holder with reasonable
    > effort. I think that it requires you to put profit in escrow.

    I know of one person who has taken this approach here in the U.S. to address a very similar problem.

    Composer/arranger Tommy Pederson was already a successful and well-known arranger of big band music when he decided to undertake formal study of composition in the ’50s. During that time he wrote seven truly unique concerti for trombone ensemble which are still of great interest to the trombone-playing community today. Alas, only a couple of these works are still in print, and the rest are in a copyright limbo of the same type that Jerry has described.

    An L.A. studio musician who had performed on the original recordings of some of these pieces happened to have had the original charts (sheet music) in his possession after the deaths of both Pederson and his wife. He made a serious but unsuccessful effort to identify the rights holders. Unwilling to permit these works to pass into oblivion, he decided to take a risk and publish them himself.

    On the advice of an IP attorney, he has maintained detailed expense records and placed all revenues generated into an escrow account. If a valid rights holder should suddenly materialize he will offer to turn over the profits and cease publication. Until then, however, the admittedly small community of folks interested in this material still has access to it.

  • jerry lobdill

    Hi Todd,

    I wonder if this approach is not also fraught with risk. If a valid rights holder appears, could she not demand all revenues whether profits or simply gross income? This could be quite expensive.

    Might she also not demand additional damages and drag the infringer into court, causing him to expend big bucks on a legal defense?

  • Todd Jonz

    Jerry writes:

    > If a valid rights holder appears, could she not demand
    > all revenues whether profits or simply gross income?

    My understanding is that he has put all revenue in the escrow account so that he would not have to tap his own resorces to cover the difference between gross and net in the worst case. His hope, however, would be that a reasonable rights holder would accept just the net proceeds based on his sales and expense records.

    > Might she also not demand additional damages
    > and drag the infringer into court

    The attorney who advised him seemed to think that offering to turn over the total gross proceeds would likely keep him out of court. To win any additional award would require the rights holder to demonstrate further damages, e.g. loss of revenue due to the competition, which would be difficult to argue in the case of an out-of-print work. The fact that there is relatively little demand for the works in question (compared to the volume a “real” music publisher would desire) would probably work to his advantage as well.

    (I should probably mention here that my knowledge of this situation is purely anecdotal and comes from a year-old exchange on an Internet mailing list.)

  • Joseph Pietro Riolo

    To Todd,

    Thanks for sharing the information with us. I
    have heard that very few people took that approach
    but they are not completely out of the woods due to
    technical copyright infringement.

    To Jerry,

    The approach that Todd explained is one good example
    of how one can evaluate the risk of being sued for
    copyright infringement. Lawyers tend to have various
    legal theories but I usually don’t trust them until
    they are backed by court cases. There is no mercy
    and grace in the copyright law. They are found only
    in the copyright owner. If a true copyright owner pops
    up and he or she is extremely nice and is very
    understanding, you are safe. Otherwise, you will find
    yourself in water filled with sharks.

    I agree with your suggestion on the solution to the
    problem (central registry of copyright ownership).
    However, the chance that it will be adopted by authors
    and artists is very small. One of the reasons why
    the formal requirement of copyright registration is
    eliminated is to lighten the burden on the authors and
    artists. While it is a big benefit to them, it is a
    disaster to the users including yourself.

    So that you will know, I am not a lawyer in any sense.

    Good luck with whatever decision you will make.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  • Anonymous

    Joseph, you write:

    “I agree with your suggestion on the solution to the
    problem (central registry of copyright ownership).
    However, the chance that it will be adopted by authors
    and artists is very small. One of the reasons why
    the formal requirement of copyright registration is
    eliminated is to lighten the burden on the authors and
    artists. While it is a big benefit to them, it is a
    disaster to the users including yourself.”

    I really fail to see how it actually lightens the burden on authors and artists. Would it lighten the burden on real property owners if there was no registry of titles? I don’t think so. It would make title insurance impossible. If you can’t show clear title you have a hard time selling or financing a sale. I would think that proponents of any version of copyright law would be very much in favor of a central registry.

  • Joseph Pietro Riolo

    Responding to the previous comment:

    Here are several examples of how much burden it will be
    on authors and artists:

    1) Writers of blogs will have to register their entries
    with the Copyright Office every week, month, or quarter.

    2) People who make comments in their entries will have
    to register their comments with the Copyright Office.

    3) Programmers who contribute their code to open source
    programs will have to register their code with the
    Copyright Office every time they make contributions
    no matter how small they are.

    4) Photographers who make 100 pictures a day will have to
    register them with the Copyright Office every day.

    5) Authors who write weekly columns will have to register
    them with the Copyright Office every week, month, or
    quarter.

    6) Kids who write cute stories and songs will have to
    register these works with the Copyright Office.

    7) Students who produce creative works as the result
    of homeworks and projects in schools and colleges
    will have to register these works with the Copyright
    Office.

    And so on.

    I think that that these examples illustrate the detestation
    that the authors and artists have for the copyright
    registration, in spite of some positive benefits in
    having clear title and registry of titles. What about
    the great burden that the users will bear in locating
    the true copyright owners in the future? They simply
    don’t care.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions
    in this comment in the public domain.

  • jerry lobdill

    Well, I think that not every utterance on a blog rises to a level that is worth copyrighting in the first place, far from it. And as far as software is concerned, I have a difficult time seeing how much of that is something that any competent programmer couldn’t do as well as any other, and so it wouldn’t be patentable if it were covered there rather than under copyright, so IMHO it probably shouldn’t be covered under copyright either.

    The idea that it should be assumed that every utterance should be covered under copyright unless explicitly dedicated to the public domain makes no sense to me.

    No matter how you cut it, permitting copyright without a “deed” or “title” that is traceable in a central registry makes no sense at all IMO.

    Today’s beneficiaries of copyright law are looking only to their own desires, and they don’t give a damn what makes sense.

    I’m sure some will think I’m a heretic, but the public domain is important; it needs nurturing, and it’s high time the law was changed to inject a modicum of sanity. (Just my $0.02)

    Everything in this post is public domain and I resent having to say so.

  • A Will

    If copyrights lasted a reasonable time then it would not be difficult to find who owned them. It is only the recent unreasonable extensions of the term of copyright that has put so many works into publishing limbo. As an author myself I would hate to have to register each work (of course if everything I wrote was worth as much as a car or a house I wouldn’t mind so much.)

    But I would have no problem changing the law so that a copyright lasted 50 years from first publishing date instead of 100 to 150 years.

    I think that would take care of most issues.

    As far as the publisher who won’t prove they have the rights…

    If you send them a certified letter stating that you believe the rights to this book belong to ________ and that you intend to republish the book unless they offer proof that they hold the rights. If they have proof they will provide it. If not even if they do sue you, you would be on stronger ground having given them fair notice.

    Just one more way to approach the situation.

    A Will