March 21, 2018

Hard Cases Make Bad Law | Peer to Peer Review

Kevin L. SmithThe legal adage that hard cases make bad law apparently has deep roots in English common law, and it was cited in a Supreme Court decision by no less a justice than Oliver Wendell Holmes Jr. Its applicability has been disputed over the years, but in recent weeks we have seen the truth of the maxim illustrated in some copyright debates. Colleagues have recently sent me two different stories in which the extremes of copyright law are in play—hard cases, I suppose. Both offer confirmation that when the facts are really well outside the realm of normal expectations, people can draw very bad legal conclusions. But both also offer opportunities to remind ourselves of fundamental truths about law, journalism, and copyright.

The first of these is the case that everyone knows about by now, the British photographer who claims to own a copyright in photographs taken with his cameras by a group of macaque monkeys. I wrote about the situation before and claim credit for coining the phrase simian selfie. There are some basic lessons we can pull from the issues and, especially, from the evolving way the story has been told over time. The second case has received less attention, although TechDirt wrote a nice post about it, but it involves educational testing agencies that, in their terms of service, seem to suggest that memorization could be a copyright infringement. Both offer us a chance to step away from the heated battles and contemplate a couple of fundamental truths about copyright and law in general.

In my earlier post, I made two points about the law and human nature that bear repeating. The first was that law is a social construction that humans create to regulate their own social interaction. No matter how smart she is, a monkey cannot own a copyright because copyright law is a creation of human government that only addresses human relationships. Fortunately, arguments over the legal claims of the monkeys seem to be waning as the debate has focused more on the alleged ownership interest held by the photographer. And that raises the second point, about how hard it is for humans to accept the idea that a cultural expression might not be owned by anyone. Until the 17th century, it was easy to imagine that no one owned culture. The greatest writers and painters of history believed they owned the objects they created—the manuscript or the original canvas—but not an ongoing right over the expression itself. This idea of owning creative expression is a product of a romantic view of creation combined with the development of technological means to reproduce cultural products. But it has hardened over the centuries into immutable truth for some people; culture must be owned, it must profit someone. It is worth challenging that view for the sake of a more robust public domain.

Over time the story of these simian selfies has evolved; the details have changed, and the focus on the absolute need for a human owner has become very intense. In a story written back in 2011, when the photos first became public, a British newspaper stated very clearly that the photographer, David Slater, “left his camera unattended for a while” and that the monkey just helped herself. Three years later, Newsweek now gives us a detailed account from Slater about how he planned the interaction and the monkey did “just [what] Slater anticipated.” We are witnessing, I think, the evolution of a legal claim but also that fierce desire that modern humans have to be able to identify an owner for everything.

Even more interesting is how slanted the Newsweek story is, working hard to refute the claim by Wikimedia that the photos are in the public domain and to defend Slater’s copyright claim. Newsweek claims that all four of the lawyers it spoke to dispute the idea that the pictures are in the public domain. All four lawyers they selected, however, are in positions where ownership over culture is their livelihood and they are predisposed to downplay the idea of the public domain; had Newsweek asked any of the law professors, for example, who have commented in the press or on the Internet, it would have heard a different analysis. But Newsweek appears to be on a mission in this story to defend ownership and deny the rights of the general public, whose role is simply to pay for access to culture. Not surprising, I suppose, and one reason why accurate information about copyright is so rare in the press.

One danger with all of this is that it is possible to create a semblance of ownership even in situations where the law would not recognize a claim. Suppose I put up some gates and start charging pedestrians to walk on the sidewalk past my house? I have no right to do this, but perhaps all of my neighbors would decide it is easier to pay me a dollar than it is to put up a fuss. Because the right over access to the sidewalk is everyone’s right, no single individual might think it worthwhile to defend it. Over time I would be a de facto owner over the right to walk in front of the house, and the traditional easement for public access might even be held to have been extinguished. The same process is possible with intellectual property; if enough people decide it is easier to pay the fee than it is to fight the unjustified claim, the public’s right grows harder and harder to defend. Think about “Happy Birthday to You,” where this de facto type of ownership seems to be firmly established over a work that is most likely in the public domain. A similar movement appears to be gaining steam around the simian selfie, even though it seems unlikely that a court would ever recognize Slater’s claim.

So from the monkey self-portrait we ultimately learn that the old adage about eternal vigilance being the price of liberty applies to the public domain.

Another lesson about what cannot be controlled through copyright comes from the various clauses cited in the TechDirt story by which educational testing companies assert that memorization is not allowed. What are we to make of bizarre claims like this: “No part of this examination may be copied or reproduced in part or whole by any means whatsoever, including memorization, note-taking, or electronic transmission”?

First, the copyright law in the U.S. is explicit that a copy must be a material object (see 17 U.S. Code 101 defining the word copies.). Memorization, by itself, is not an infringement of copyright, and insofar as these terms of use imply that it is, they are either badly drafted or making fraudulent claims. Of course, it is easy to understand what the companies are trying to prevent. They do not want someone preparing for a licensing exam to memorize questions and then post them to the web. It is the act of transcription to the web—a reproduction of the original—that is a potential infringement. Likewise, if I memorize substantial portions of a new movie and recite them at a party, I may be making an infringing public performance. But it is the communication to others through copies or as a performance that has the potential to infringe, not the purely mental act of memorization. As Tim Cushing points out in his TechDirt post, storage of the memorized text in the original cloud storage—the human brain—is not infringement. Copyright is not mind control.

From both of these cases we can learn some basic truths; basic but not universally recognized, which means that we need to remind ourselves and others about them. Copyright is a human institution that protects human creative effort within specific limits. One of those limits is the public domain, which has always been a part of copyright and which itself protects the ability of future authors to exercise their own creativity. Copyright is a set of economic rights held by authors, but it is not a form of mind control; simply knowing something, or remembering it, is not—and cannot ever be—a copyright problem.

All laws need limits, lest they become an excuse for tyranny. These are some of the limits that are built into copyright, and they protect us from the unique types of tyranny that such a law might be prone to, including the illusion that every piece of culture must be owned by someone and that every use, even in one’s own mind, must be paid for.

Kevin L. Smith About Kevin L. Smith

As Duke University’s first Director of Scholarly Communications, Kevin Smith’s ( principal role is to teach and advise faculty, administrators and students about copyright,intellectual property licensing and scholarly publishing. He is a librarian and an attorney (admitted to the bar in Ohio and North Carolina) and also holds a graduate degree in religion from Yale University. Smith serves on Duke’s Intellectual Property Board, Digital Futures Task Force and Open Access Advisory Panel. He is also currently the vice chair of the ACRL’s Scholarly Communications Committee. His highly-regarded blog on scholarly communications discusses copyright and publication in academia, and he is a frequent speaker on those topics.

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  1. Elizabeth says:

    Now that I’ve taken your MOOC, I’m reading your articles in your voice! Another excellent summation of the copyright terrain.