Christian businesses make copyright claims without legal merit...

Readers may think this is too boring to read, but if you have any interest in the matter of copyright, particularly as it pertains to works in the public domain, this letter is essential reading. (Yes, I know that's self-serving but I do want you to read this so we can get the message out.)

Some weeks ago, I sent this letter off to the good folks of the Encyclopedia Puritannica Project. I had written them earlier to protest the threat they displayed prominently on their legal page to sue anyone who shared the Puritan works in the public domain they had digitized--changed from paper to digital copies. Specifically, this claim from their legal page is without legal basis:

The republication of EPP digital texts for commercial or non-commercial purposes is not allowed without permission. These texts are copyrighted and the EPP reserves the right to employ stealthy, text-tracing in order to detect and legally prosecute the theft of its work.

In my letter to EPP, I pointed out that their work digitizing the Puritans did not authorize them to make a profit off works that were in the public domain, and therefore owned by no one.

They responded defending their actions by saying they'd spent a lot of money on digitizing the Puritan works, and that the copyright they claimed was ironclad based upon that money and the work it represented changing mediums from analog (paper) to digital (electronic).

With much help from several attorney-friends as well as another attorney who specializes in intellectual property law, I wrote the following letter.

There are plate tectonic implications for Christian companies who have built their business model on threatening to take to court anyone who reproduces their work in cases where the heart of their work is a public domain work that was written centuries ago. Threats of legal action and the underlying claims of copyright are not sustained by the law.

Unless Christian businesses making money off selling digitized copies of works in the public domain can demonstrate they have added significant original or creative content--not hyperlinks, standardization of Scripture references, formatting, or indexing, for instance--their claim of copyright is baseless, legally. Further, threatening that they will take users to court if they share the public domain text with others is contrary to the explicit command of Scripture--that we are not to go to court against one another.

For too long, Christians have been nave concerning these claims and have allowed themselves to be intimidated by the threat of legal action. Who wants another Christian accusing one of being a thief?

But works of dead fathers in the faith are in the public domain and no matter how much money and time Christian businessmen have spent scanning, OCRing, and proofing those texts as they take them from analog to digital media, the courts are clear that they may not copyright that work.

For businessmen to claim otherwise is to mislead the public.

Now, a couple clarifications:

First, I have never owned, read, or had copied to my hard drive any copy of EPP's works. Thus my taking up this issue is not personal, but a matter of principle.

Second, I am not opposed to EPP and other businesses asking for contributions for their work and investment, as long as when they make their request they clearly state that any contributions they might receive are a gift to help them recoup their investment--not a duty or a legal obligation.

Third, it's been over two weeks now since I sent this letter to EPP and I've not yet received a response other than their acknowledgment that they received it.

Fourth, David and I have some personal history in pioneering the digitization of theological and biblical works and making them freely available on the internet. So, we've put our work where our mouths are.

And finally, the same principles here in this letter applied to the EPP apply to a whole host of Christian businesses that have built their business model on selling digital copies of theological works that are in the public domain. Lacking any original or creative additions, their claim of copyright has no legal basis.

* * *

February 4, 2006

Mr. Steve Mouring
Encyclopedia Puritannica Project
P.O. Box 573
Bealeton, VA 22712-0573

Dear Steve,

In my earlier E-mail I indicated that I would wait to deal with my legal findings in a second E-mail. What then is the law concerning works in the public domain that exist in hard copy (analog) form and have been changed to electronic (digital) form?

Three cases are foundational to this discussion: Feist Publications, Inc. v. Rural Telephone Serv. Co., 499 U.S. 340, 111 S.Ct. 1282 (1991) http://www.law.cornell.edu/copyright/cases/499_US_340.htm, Matthew Bender & Co. v. West Publishing Co., 158 F.3d 674 (2d Cir. 1998) http://www.law.cornell.edu/copyright/cases/158_F3d_674.htm, and Matthew Bender & Co. v. West Publishing Co., 158 F.3d 693 (2d Cir. 1999) http://www.law.cornell.edu/copyright/cases/158 F3d 693.htm.

In Feist , Rural Telephone had produced a telephone book for a small area of northwest Kansas. Feist, a publisher of phone books for larger areas, sought to license Rural's listings. Rural refused to grant the license. Feist then copied and published about 4,000 of Rural's listings and Rural sued Feist for copyright infringement.

The Court, recognizing the principle that facts such as phone numbers are not copyrightable, analyzed the degree to which copyright could protect the compilation of facts. Until Feist , there had been two bases for claims of copyright: the sweat-of-the-brow basis and the originality or creativity basis. In Feist , the U.S. Supreme Court found against Rural and in the process explicitly rejected the sweat-of-the-brow principle further discussed below, ruling that the U.S. Constitution required originality or creativity for the granting of copyright. Since Feist , copyright law has been in a state of change as courts have worked through the process of applying Feist .

Because its territory includes New York City, the application of Feist has fallen more heavily on the shoulders of the 2nd Circuit Court and this court has issued more post- Feist opinions than any other circuit court. Among those cases decided by the 2nd Circuit, the Matthew Bender cases are most on point to this discussion.

The Matthew Bender cases are hallmark cases in copyright law. The dispute surrounded West Publishing House's publishing the National Reporter System which included case reports of both state and federal court decisions--all of which were, by law, in the public domain. West claimed copyright on these reports and Matthew Bender/HyperLaw, another legal publisher, went to court seeking a declaratory judgment against West that would establish Bender/HyperLaw's right to reissue West's case reports on CD-ROM without fear of copyright infringement. Though related, one case addressed the insertion of pagination (the pagination case) and the other the manipulation of the text (the text case).

As reviewed by the court, there were a number of bases upon which West founded its copyright claims, including the following:

1. West's pagination of its reports;

2. West's "arrangement of information specifying the parties, court, and date of decision;"

3. West's "selection and arrangement of the attorney information;"

4. West's "arrangement of information relating to subsequent procedural developments such as amendments and denials of rehearing; and"

5. West's "selection of parallel and alternative citations."

The 2nd Circuit Court did not find any of these bases sufficient for copyright.

Summarizing the issues, the 2nd Circuit Court stated:

All of West's alterations to judicial opinions involve the addition and arrangement of facts, or the rearrangement of data already included in the opinions, and therefore any creativity in these elements of West's case reports lies in West's selection and arrangement of this information. In light of accepted legal conventions and other external constraining factors, West's choices on selection and arrangement can reasonably be viewed as obvious, typical, and lacking even minimal creativity. Therefore, we cannot conclude that the district court clearly erred in finding that those elements that Hyperlaw seeks to copy from West's case reports are not copyrightable, and affirm.

Matthew Bender (text case), 158 F.3d at 677.

Feist, in removing sweat-of-the-brow as a justification for copyright; and Matthew Bender (text case), 158 F.3d at 677, in explicitly rejecting a number of claims of creative additions to a public domain text, are the two cases most on point to this discussion.

Now we turn to the application of these cases to the matter before us.

First, the claim of the Encyclopedia Puritannica Project (EPP) that the labor of changing a public domain work from hard copy (analog) to electronic text (digital) grants a legitimate basis for the claim of copyright is contrary to L. Batlin & Son, Inc. cited in Bender. The work of changing mediums is not considered original work. "[T]o support a copyright there must be at least some substantial variation, not merely a trivial variation such as might occur in the translation to a different medium." Matthew Bender (text case), 158 F.3d at 680 (quoting L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 490-91 (2d Cir. 1976) (en banc)).

Second, the EPP states: "the EPP DOES have a copyright on its implementation of the Puritan and reformed works on its CD" and it "asserts its copyrights on the basis of BOTH of these criteria: 1) Form / change in form 2) Percent change in content" (emphases in the original).

Dealing first with the second of EPP's criteria, in the post-Feist world "percent change in content" no longer applies. No matter how much sweat equity is in a work, nor how high the percentage of the work that sweat equity represents, copyright is no longer granted on this basis. The only basis now is creativity or originality.

Moving next to the first of EPP's two criteria listed above, it is not clear that in the post- Feist world the first criteria applies, either. It depends upon what sort of "change in form" EPP makes to the public domain text.

If the "change in form" is a creative contribution similar to the translation of the public domain text from one language to another, a claim of copyright might well be sustained due to the originality and creativity of EPP's change to the text. If, however, the "change in form" is neither creative nor original, no matter how substantial that change or what percent of the document is affected or how many man-hours are invested, a claim of copyright will not be sustained.

With a rise in the level of creativity, the possibility of copyright also rises. Trying to make a copyright claim in EPP's behalf, we might list EPP's justifications for their own claims of copyright as follows, in rising order of lesser to greater degrees of creativity:

1. Scan public domain text,

2. Run optical character recognition (OCR) software over scanned image,

3. Correct typographical errors in the original printer's work,

4. Correct typographical errors in the OCR software's work,

5. Apply standardized form to Scripture references,

6. Apply standardized form to dates,

7. Apply standardized form to other scholarly citations,

8 Exchange Roman for Arabic numerals,

9. Create hyperlinks for Scripture references,

10. Supply Scripture references to texts cited directly, not obliquely,

11. Apply font formatting,

12. Apply page layout formatting, and

13. Add tables.

It's hard to see how 1-10 could ever be copyrighted since each one of these actions must be done according to industry standards and has no room for originality or creativity. And numbers 11 and 12 are easily dismissed since we're discussing a publication, not a trademark or work of art.

This leaves number 13 as the only change claimed by EPP that seems potentially to involve some minimal amount of creativity on EPP's part. But even the addition of tables may merely affect page layout, rather than any new contribution to the text of the original public domain document. Page headings could be one cell, text body another, and page numbers a third. In such cases, claims of copyright based upon creativity are unsupported. Then again, the tables may function as an appendix to the work, or an integral part of the index. If they are an appendix and they have a modicum of creativity, similar to an original foreword, the proper thing to do would be to claim copyright for the appendix, and not try to extend the copyright claim to apply to the original public domain text also. After removing EPP's tables from the public domain work, any duplication would be impervious to charges of copyright violations.

The addition to the public domain text of standardizing spelling, references to Scripture citations, and hyperlinks to those Scripture references, and some limited annotation, also grants no basis for the claim to copyright since such changes are neither creative nor original. Granted, they are work-intensive and add value to the public domain text, but such work does not involve the sort of judgment call that translating from one language to another demands. Any person doing this work would do it in the same way, thereby proving it is not creative. Honorable and valuable work, yes; but not copyrightable work.

The 2nd Circuit Court concurred with the district court that, "'West does not have a protectible interest in any of the portions of the opinions that HyperLaw copies or intends to copy' because West's alterations lack even minimal creativity." Matthew Bender (text case), 158 F.3d at 678 (citing Matthew Bender & Co., 1997 WL 266972, at *4 (S.D.N Y May 19, 1997)). Later in the opinion, the 2nd Circuit elaborated on number (i) above:

The creative spark is missing where ...industry conventions or other external factors so dictate selection that any person composing a compilation of the type at issue would necessarily select the same categories of information, see, e.g., Victor Lalli Enters., 936 F.2d at 672 (charts of winning numbers in illegal gambling operations); see also Mid America Title Co., 59 F.3d at 722 (title examiner's report; "[s]electing which facts to include in this compilation of data was not a matter of discretion based on Mid America's personal judgment or taste, but instead it was a matter of convention and strict industry standards"), or (ii) the author made obvious, garden-variety, or routine selections, see Feist, 499 U.S. at 362, 111 S.Ct. at 1296 (concluding that the selection and arrangement of a white pages in which the publisher had chosen to include name, town and telephone number, and to arrange these listings in alphabetical order were entirely "typical" and "garden-variety")....

Matthew Bender (text case), 158 F.3d at 682.

From the above, it is clear that standardizing spelling, adding and hyperlinking Scripture references, and similar additions to public domain texts cannot confer any right of copyright to the one doing the work. Such work follows "industry conventions," others would have to do the work in the same way, the selection of the references is "not a matter of discretion... based on personal judgment and taste," but "a matter of convention and strict industry standards." The worker only made "garden-variety," "typical," and "routine selections."

In connection with the claim that the addition of Scripture references is a legitimate basis for copyright, here is the 2nd Circuit Court's reason for denying a very similar claim concerning legal citations:

One way of saying that West's "choices" are obvious and typical is that a competitor would have difficulty creating a useful case report without using many of the same citations. Affording these decisions copyright protection could give West an effective monopoly over the commercial publication of case reports (at least those containing supplemental citations).

Matthew Bender (text case), 158 F.3d at 682.

What about font and page layout changes--are these changes copyrightable?

No. The purchaser is buying a book, not a work of art, and whatever font and design decisions are made, it would be the work of a moment to select the text and change those decisions yet again.

What about the change from Roman to Arabic numbers, the correction of printing errors, and the standardization of references--are these changes copyrightable?

No. Such changes are addressed in Matthew Bender and are "typical," "garden variety," and "lack a modicum of creativity."

Is there finally, then, some "percent change test" that may form the basis of a copyright claim?

No. Regardless of how much work is done in updating a public domain text for republication in a digital format, the only basis for a new copyright is creative and original work added to the text. For instance, a foreword may be added and that foreword may be copyrighted. But even then, the public domain text that foreword accompanies may not be copyrighted. The foreword is an original work but its being bound with a public domain work does not cause its copyright to rub off on the older text. On the other hand, if the "percent change" is a function of the old public domain work being translated or paraphrased, original or creative work has been done and the work would likely be copyrightable.

Again, the threshold for copyright is not the percent or amount of work, but the nature of that work--and specifically, whether that work is original or creative.

It may be argued that some of the changes made to a work in the public domain are, in fact, both creative and original, and therefore that a new copyright is legally justified. It is worth pointing out, though, that in such cases it would still be proper to remove those changes from the underlying text and publish that underlying text without fear of copyright infringement since the E-text of the original is as much in the public domain as the work's original hard copy.

To turn to a specific matter raised in your prior E-mail, you cite a case involving Still Waters Revival Books as follows:

You may be aware of the trouble that Still Waters Revival Books (SWRB) got into with their Puritan series of image PDF CDs. They took someone else's TIFF images (of 17th century books no less!), put them into PDFs, added some bookmarks, and then slapped them on CDs for sale. The courts rightly found SWRB guilty of copyright violations because they did NOT change the form sufficiently (i.e. basically they stole the images ... of 17th century, public domain, Puritan books!)

But no court ever "found SWRB guilty of copyright violations" because the case never went to trial.
Some findings above are based upon the U.S. Supreme Court's ruling in Feist Publications Inc. v. Rural Telephone Service, a tidal shift in copyright law declaring that "originality is a constitutional requirement" and that prior "industrious collection" or "sweat of the brow" standards would no longer apply. This now is settled law and, short of reversal, must form the backbone of all copyright claims and decisions.

On the other hand, although the Matthew Bender case is the closest case on point, it is neither binding on other Circuit Courts nor on the U.S. Supreme Court, and this must be kept in mind. Still, the 2nd Circuit Court has issued more opinions working out post- Feist standards of originality and creativity and thus its opinions are to be given substantial weight in such matters until such time as its standards are denied or changed within other Circuit Courts' jurisdictions, or until it is reversed by the U.S. Supreme Court.

Thus applications of Feist are definitive, while applications of Matthew Bender are presently definitive within the 2nd Circuit Court's jurisdiction, and persuasive in other jurisdictions.
At this point in the discussion, one might ask, "If it is not possible to copyright works in the public domain on the basis of their having been changed from one medium (hard copy) to another (E-text), or on the basis of their spelling, dates, citations, and numbering system being standardized, or Scripture references being added to quotations of Scripture in the original text, on what basis might a publisher claim copyright for such materials?"

The most obvious answer is that the publisher is not informed concerning the details of copyright law. In this case, upon being informed that his claim of copyright is not supported by the law, such a publisher would discontinue making this claim and would, instead, find another method of assuring his business' profitability.

Some might claim to hold copyright while knowing their claim is without merit. It is not uncommon for legal claims to be made that extend past legal rights and for those making such baseless claims to warn that they intend to sue those who violate them. The effectiveness of this technique depends upon intimidation under threat of lawsuit. Faced with the wealth and power (and often in-house legal departments), it is understandable that smaller businesses and individuals would choose to err on the side of caution rather than run the risk of being taken to court.

In both cases above, it must be kept in mind that, in legal no less than other matters, a man saying it's so doesn't make it so. As Daniel Cohen and Roy Rosenzweig state in their book, Digital History: A Guide to Gathering, Preserving, and Presenting the Past on the Web , published in 2005 by University of Pennsylvania's Penn Press:

Even the most carefully placed or most threateningly worded copyright notice does not protect you if the work does not meet the requirement enunciated in the Feist case that copyrightable works reflect a minimal degree of creativity and originality. You can spend thousands of hours scanning and digitizing public domain documents--say, the entire New York Times from 1865 or all of Charles Dickens's novels--but, according to most lawyers, you can't copyright the results. http://chnm.gmu.edu/digitalhistory/copyright/3.php

(Similar to Digital History, another helpful work is Prof. Deborah Tussey's, "The Creative as Enemy of the True: The Meaning of Originality in the Matthew Bender Cases, The Richmond Journal of Law and Technology 10, (Spring 1999) http://law.richmond.edu/jolt/v5i3/tussey.html#n4.)

In the above summary of the law, please keep in mind I am neither an attorney nor have I received any formal legal training. And yet, I have requested legal advice and have been assured this summary is accurate.

Yet this letter does not address one other matter held in abeyance: given the above, what are the demands of love that exist between EPP's investors and those who drink at the wells of Puritan divinity in this late day and desire to use the Puritan's work in digital form? I will wait to address this matter in my third, and final, letter.

Meanwhile, I would appreciate hearing from you concerning any legal matter you believe I have overlooked or erred in.

Steve, we both share a common love for the writings of the Puritans and desire to see their works in as many hands as possible. The dilemma we face is finding the best and most honorable method for doing so. May the Lord bless your work for Him.

Cordially in Christ,

Tim Bayly

Comments

[Buddy]

This is one of those things that really ticks me off in the so called 'christian' publishing industry. What is more important, our monitary desire, or the spread of the gospel? I feel the same way about bible translations.

Although I can see the point of wanting to recoup costs of translation, it seems more important to me to have the Bible freely available than for me to make money off of it. I kind of like the way the ESV is doing their translation, in that regard, and the WEB is even better (more free) in that regard.

The Bible, and the gospel, should be the true 'open source' text of the world. People money grubbing off of it just annoy me to no end.

[mark]

I do find this interesting, and have looked into these issues a bit in the past. I follow the legal logic (though I confess to skipping about the last third of the post).

My brain, however, has sympthies for those who originally put in the sweat of the brow stuff. I picture hiring a guy to frame a new wall in my house. No claims to originality their, he is just doing something I'm too lazy or lacking in skills or time to do myself. I benefit from his sweat, he benefits because I can't grab my digital camera, snap a photo of his work, and then use that to frame a wall in someone else's house.

I think you are right about the legal merits, I just can't help thinking these folks should be able to expext money for their labor.

I appreciate the blog.

p.s.
anyone wanting to email me should take out the 123

p.p.s
please don't email me

[mark]

their = there

Buddy,

How are we to incorporate I Cor 9 into all this? Perhaps one of the Pastors Bayly have touched on this in the past. How can these people plow in hope? Are we to just see them as leaches because they are merely reproducing a dead guys work?

p.s.
anyone wanting to email me should take out the 123

p.p.s
please don't email me

[Buddy]

Expecting support for your work in the gospel and demanding it under threat of lawsuit are two total separate ends of the spectrum. One is relying on God to provide your needs, one is demanding someone 'respect' the work in a 'HEY LOOK WHAT I DID' sort of thing.

I have no problem with teaching elders and church workers recieving support. I have a big problem with said church worker deciding to sue the church (or a member thereof) because they feel they aren't getting the money they 'deserve'. I think we often in America confuse 'wants' with 'needs' way too much. Personally, in my work, I take the road of Paul. I work to support myself, that I not be beholden to anyone.

My question is for some 'laborers in the word': (not the baylys but others I have run into)

"Are you doing this because, like Paul, you are a slave to Christ, (hint, what does slave imply) one bound to preach the gospel, literally in chains to it, or are you doing it because you want to make money?"

Again don't take that to mean I don't think we should support those laboring in the word. However, should we support them to the point of being able to afford 5 million dollar homes and Rolex watches? Is that really 'support' or wasteful extravagance?

Act 20:32 And now I commend you to God and to the word of his grace, which is able to build you up and to give you the inheritance among all those who are sanctified. 33 I coveted no one's silver or gold or apparel. 34 You yourselves know that these hands ministered to my necessities and to those who were with me. 35 In all things I have shown you that by working hard in this way we must help the weak and remember the words of the Lord Jesus, how he himself said, 'It is more blessed to give than to receive.'"

P.S. 'Help the weak' is key in that verse.

[Tim Bayly]

The following statement was written in behalf of a major Christian digitizer of old theological works that are in the public domain. That publisher is not EPP and this summary of the law was written some time ago to another person--not to me.

He writes:

***You sent me a separate question about copyrights and text conversion. We have received conflicting legal advice on this issue for years. The best that I can make out at this point is that converting a text involves "work". "Work" is not protected by the traditional (read: "old" or "pre-1984") copyright laws but it is protected as a "form" of a work. If I read the King James Bible on tape, I can copyright that particular reading. No one can make copies of my reading. They can read it themselves and make their own copyrighted version. We are making digital versions of a copyrighted book. They can make their own digital version of the book but they cannot use ours. True, they look the same, but "work" performed to get it in that form is different. Whenever I use this reasoning with others it has shut them up. We have leaned heavily on good will and fairness as the means for confronting this issue. So far only one person has given us a hard time, but he is now out of business.***

I respond:

This summary does not state the law as it is, and there are good reasons why the law is at it is. Put simply, the only thing that can be copyrighted is original and creative work--not any other work. Any discussion of performance confuses the discussion since the voice of James Earl Jones is creative work--you know, intonation and all that.

So leave all issues of performance behind. They don't apply.

Rather, the question is whether someone can create a digital version of an analog work in the public domain and claim copyright? The answer is firmly "no." Nor can they copyright hyperlinks, Scripture references, citations, etc. because none of these things have any significant element of creativity to them: they must each be done in exactly the same way by the next person who might decide to reproduce EPP's (or any other digital publisher's) work.

Why would the Supreme Court issue this decision? Well, there are a number of reasons, not the least of which is that any work that has to be done in the same way by someone else can't be coyrighted because it's not creative. It's rote and it would be indistinguishable from any other person's work who reproduced their work. (If you read my letter thoroughly, you'll see and understand the legal principles.) Copyright laws only protect creativity--not grunt or sweat of the brow work or money invested. And that's the U. S. Constitution, not just the Supreme Court's ruling.

So again, the law is this: neither (this digital publisher) nor EPP nor anyone else can digitize works and claim copyright. It is perfectly legal for digital copies to be reproduced just as analog copies are when one puts one of my antiquarian books on the copy machine and presses a button. Yes, that antiquarian book is very valuable, monetarily (say my first edition of Richard Baxter's paraphrase of the New Testament), but that gives me no right to refuse to allow that copy I made on my copier to be reproduced one thousand times without those reproducing it paying me royalties or else I'll take them to court.

EPP and (this other digital publisher of works in the public domain) have made an investment based upon a faulty understanding of copyright law, hence their confused (and confusing) response to you. No one owes them a return on this investment any more than I'm owed a return on my investment in antiquarian volumes or a copy machine or my work pressing the button hundreds of times to copy the book in its entirety. Sure, I can ask, but the courts have clearly spoken that there's no legal basis to demand money as a return for my hard work or a large outlay of cash.

It's wrong to demand that other Christians pay money to use something that the law says is in the public domain and may not be copyrighted. One can ask for the money, one can even wheedle and cajole believers in a way that causes them to give you money so you are able to make a profit off your investment.

But one cannot demand anything. The law prohibits it.

[Ted Dorman]

Thanks for the info, Tim. This was completely off my radar!

You've performed a service to to all of us who deal with old texts in the public domain -- be the format paper or digital.

TED DORMAN
P.S. Greet Heather and Doug for me next time you get the chance.

[Tim Bayly]

Dear Mark ?,

Again, there's absolutely no reason why EPP and other digital publishers of works in the public domain can't request money from their users--they just can't demand it using the law to buttress their demand. To do so is to violate the command of Scripture that we not go to court against one another, and to violate the law which says these things cannot be copyrighted.

Many businesses run on a contribution basis. The Bible program I use and have used for many years is shareware. (I can't give its name because the spam filter won't allow a certain progression of letters but it's the Onl.ne Bible.) Also, Focus on the Family. Also, the Church.

As I said in my letter, the threats and claims of copyright should stop. Rather, these publishers should ask their users for contributions and trust that God's people will here, as many other places, consider the workman worthy of his labor.

Cordially,

Tim Bayly

[Tim Bayly]

Again, one reader wrote me privately:

****I wonder whether the scripture links might not be thought creative. It is not creative in the sense of being novel or original, but it is creating something that didn't exist before...***

I respond:

Scripture links can't be creative if they follow industry standards and must be done by anyone in the same way. In theological works, it would be very unusual for anyone to add a Scripture link that wasn't explicitly quoted in the text. So let's say a Puritan had written on loving our wives: "Remember the teaching of Scripture: 'husbands love your wives as Christ loved the church and gave Himself up for her' (Ephesians 5:25)". And say a digital publisher created a hyperlink to Ephesians 5:25. That hyperlink couldn't possibly be creative since anyone duplicating their work of creating that hyperlink would have to do it in the exact same way, and thereforee their work would be indistinguishable from that of the original digital publisher. About the only choice the original digital publisher would have would be which translation to use.

But what if the text instead said: "Remember the teaching of Scripture, that we are to love our wives."? Even then, there's no creativity since anyone would have to hyperlink the same Scripture references.

But what if the Puritan had written, "Scripture teaches husbands much about their duties in marriage," and left it at that, without any citations in the original text (or even any allusions)? Then yes, I think it would be creative to insert Scripture references and hyperlinks to those references.

But such a thing is almost never done because the whole point of someone's work is to give me his thinking--not the digital publishers. Furthermore, it's hard to imagine a Puritan writing in such generalities. After all, that's why we love the Puritans.

[Elizabeth]

They actually claim the right to be "stealthy"? That brought a smile to my face on an otherwise difficult day.

And looking at their legal page, regardless of the substance of the matter, it's over the top to invest a certain interpretation of the current, contingent legal regime with all the authority of the seventh (or however y'all number it) commandment. My husband has had to deal with a bit of this sort of thing in his business.

It's not just a Christian issue though. A culture of cowed credulity toward intellectual property claims is sweeping the country. Thanks to the over-the-top claims of certain publishers, a lot of women now think there's something wrong with knitting a sweater from a library book (then why does the library have knitting books?) or who when asking for help with an instruction, mangle it beyond recognition (so you can't really help them) for fear of "partially reproducing" the pattern.

[Derek]

I'd like to address a few of the overstatements and then proceed to the substance of the argument.

1. You state that public domain work is "owned by everyone." It's misleading to give ownership to all. As Black's Legal Dictionary states, "When copyright, trademark, patent, or trade-secret rights are lost or expire, the intellectual property they had protected becomes part of the public domain and can be appropriated by anyone without liability for infringement." This is an important distinction, since the work actually has no owner but is simply available to anyone for use.

2. To use such sweeping phrases as "baseless," "without legal basis," or "absolutely no legal basis" grossly oversimplifies the nature of their claim. It took a few attorneys a few weeks to research and compose a response to the legal claim asserted. It depends heavily on nuanced distinctions of the terms "original" and "creative." The rhetoric oversimplifies the difficulty of these issues. After all, since EPP did engage in at least 13 distinct acts to move the work from one format to another, it heavily depends on the current state of the legal terminology, giving their assertions at least a minimal "base."

3. You articulated in your post (not the legal e-mail) that the standard was "significant original or creative content." The actual legal standard is a slight amount of creativity, and some substantial or non-trivial variation. The standard articlated in the original post is an overstatement regarding creativity.

4. While asserting that it is contrary to Scripture to go to court against one another, EPP's disclaimer presumably extends beyond Christians and includes non-Christians as well. While I agree with your interpretation of Scripture regarding Christians haling fellow Christians into court, the text of I Corinthians 6 does not necessarily extend to non-believers. Though EPP may not be willing to go to the Church first with its disputes with brothers, it is unfair to call them out on their broad legal disclaimer without discerning their actual view of resolving disputes with believers (which may admittedly be unbiblical).

Now, to the legal substance.

I admit that my knowledge of copyright law is limited to that of a fallible law student. A work existing in public domain, however, is not necessarily subject to the massive burden that the legal discussion above seems to have placed before it. Indeed, it's relatively easy for a publisher to obtain a public domain work of Shakespeare or Byron, bind it, and publish it with a copyright attached. It may or may not have footnotes. It may or may not have an introduction. But it's been compiled and edited in a particular way that makes it protected by copyright law.

As 17 USC 103(b) states, "The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material."

Here, as admitted earlier, EPP did derive material from a public domain format. It then altered the material, albeit nominally in some aspects. To say that because its alterations met "industry standards" does not necessarily indicate that its alterations were not unique. Indeed, its selection of which Bible translations to hyperlink; its insertion of citations for texts not cited directly; and its actual editing of the original publication are very real differences from the Bender cases, in particular the editing. While the Court opinions themselves were in the public domain, the additions and alterations were more about standard formatting. West never had to insert a case reference, just standardize the format; West never had to decide which versions of the cases or articles to hyperlink, since only one existed; and West never edited any of the text included in the Court's opinion, taking the entire opinion whole-cloth.

At the same time, I'm very sympathetic to your rejection of the "sweat of the brow" claim made. While it certainly should call users to donate on account of the work put into it, it is a loser when it comes to copyright law.

In short (though it's too late for that), I think that the legal analysis presented above is fairly accurate, but it relies too heavily on the similarities between this case and Bender than the differences, which I believe are significant and potentially effective enough to turn the case the other way. That said, I have done little research in this area of the law, and I feel that I must end my contribution here.

[Jon Taylor]

Dear Tim,

International law can introduce interesting corollaries. For example, the KJV is considered public domain in most countries (as the translators are all dead and gone for more than 50 years {including William Tyndale whose work was largely cannibalized}) and yet in England production must be authorized by the Crown.

http://en.wikipedia.org/wiki/Crown_copyright

[David Bayly]

Dear Friends,

Please remember that Tim's post ONLY addresses the legal situation of such public-domain works. In fact, the arguments by Vern Poythress and John Frame linked to by Tim in his subsequent post go far towards undermining the ethical/moral assumptions of those who argue in favor of such copyright.

Not only are claims such as those made by EPP incorrect legally, worse yet, they are maintaining a property right to words and ideas that Scripture nowhere endorses.

We should at least be able to speak God's truth among God's people, and if God's people cannot recognize it as theft against God when Christians claim words and ideas were given them by God yet then turn right around and claim copyright on such words, we have left Christian morality behind.

In fact, Tim's argument on this page is charitable to those employing such tactics: charitable in its willingness to recognize a sweat-equity investment, charitable in dealing with the issue only on the basis of legal precedent rather than Biblical teaching.

David

[Tim Bayly]

Dear Derek,

Thanks for your thoughtful comment. Here are a couple responses.

You wrote:
***You state that public domain work is "owned by everyone." It's misleading to give ownership to all.***

I respond:
You're right. I meant to write, "is owned by no one" and have corrected it. You'll note the letter does not contain this error.

You wrote:
***To use such sweeping phrases as "baseless," "without legal basis," or "absolutely no legal basis" grossly oversimplifies the nature of their claim.***

I respond:
EPP has staked their claim of copyright on sweat of the brow justifications that have been explicitly denied by our nation's top court. EPP might now present new arguments based on creativity. Time will tell whether those arguments have any legitimate basis in law, either.

You wrote:
***It depends heavily on nuanced distinctions of the terms "original" and "creative."***

I respond:
No, it depends heavily on the explicit rejection of sweat of the brow justifications by the U. S. Supreme Court.

You wrote:
***You articulated in your post (not the legal e-mail) that the standard was "significant original or creative content." The actual legal standard is a slight amount of creativity, and some substantial or non-trivial variation. The standard articulated in the original post is an overstatement regarding creativity.***

I respond:
Lawyers talk legalese; non-lawyers don't. In my legal letter, again, you will find the technical language used. Outside of legalese, though, our readers understand that until the courts declare there is sufficient creativity to sustain a claim of originality, the court does not see substantial creativity--not substantial enough for them to sustain a claim of copyright, that is.

You wrote:
***While asserting that it is contrary to Scripture to go to court against one another, EPP's disclaimer presumably extends beyond Christians and includes non-Christians as well (and therefore) it is unfair to call them out on their broad legal disclaimer without discerning their actual view of resolving disputes with believers.

I respond:
EPP is publishing Puritan works. It strains credulity to think of their warning not being aimed overwhelmingly, if not exclusively, at those who have a desire to read these works--works, I might add, that are viewed with revulsion by the world.

You wrote:
***To say that because its alterations met "industry standards" does not necessarily indicate that its alterations were not unique.***

I respond:
It's not a matter of "meeting" industry standards but of having to follow industry standards. In other words, everyone updating archaic Puritan spelling would have to do it in the exact same way. Thus these updates to spelling lack any creativity and may not be copyrighted.

You wrote:
***Indeed, its selection of which Bible translations to hyperlink; its insertion of citations for texts not cited directly; and its actual editing of the original publication are very real differences from the Bender cases, in particular the editing.***

I respond:
My guess is that the courts would not look favorably on an argument that the choice of which Bible version to hyperlink to justifies claims of copyright for texts in the public domain. And if a court were inclined to sustain such an argument, I'm guessing they'd be reversed.

As for texts not cited directly, maybe one in five hundred would qualify. The vast majority of texts would be cited directly and, again, would have to be dealt with the same way by anyone inserting explicit citations or hyperlinks. Thus there would be no creativity.

Concerning editing, every one of the changes referred to in the legal cases I've cited come under the category of editorial changes. If by editorial changes you really mean, not standardization of Scripture citations, insertion of hyperlinks, updated spelling, and so forth, but rather the addition or deletion of substantive arguments, the purification of logic, the insertion of commentary as footnotes, then of course we have creative work which may be copyrighted. But that's not the case.

Rather, the arguments are being made on the basis of the financial cost and the large amount of labor the work entailed, but also that the simple change from an analog to a digital medium, in its own rights, is a legitimate basis for copyright.

Thank you for your careful interaction.

Tim Bayly

[Nathanael Mosley]

What about terms of use? I've recently purchased a set of disc's containing digitized copies of public domain math texts. While the nature of the works are different than the case of the Puritan texts, the business principles are largely the same. The man I bought them from is, I think, a Christian, and he's applied a lot of sweat and money to produce this digital version. I assumed from the beginning that his copyright claims were baseless, but in buying the cd's I indicated that I agreed to his "terms of use." Doesn't that contractually bind me to refrain from doing anything to the digital versions of the text that is forbidden in the terms?

[David Bayly]

Dear Nathanael,

Tim's under the weather, so I don't know when he'll get back to you.

My guess is that the moral implications of the terms of use contract are more binding than the legal. These things are often boilerplate, but if Christians want to ask their purchasers to be bound by a plainly-stated agreement, I think we would all recognize it as more morally palatable than a warrantless threat of legal action.

Yours in Christ,

David

[Valerie (Kyriosity)]

I haven't read everything here and I don't have what you might call a keen legal mind, but I confess my sympathies are with the publisher. He genuinely has put a lot of work into this, and ISTM he ought to be able to protect the fruits of his labor. It's true that there's not a lot of creativity in #s 1-10, but there is honest hard work involved. I'd liken it to shoveling out a parking spot on a public street after a heavy snowfall. It's not a creative act, but where I live (Baltimore City) you steal the spot someone else has shoveled out for his car, and ain't no jury's gonna convict him when he beats you to a bloody pulp. (OK, that's probably not really true, but you're certainly asking for trouble of a violent sort and you're not going to get a lot of sympathy.) Granted, an electronic version of a public domain work can accommodate more users than a parking spot, but my point is about being able to profit from one's own labor. What incentive is there for an entrepreneurial bloke to go to all that effort just fo himself? If we don't allow folks to make a profit from such efforts (and if we don't protect their legal right to do so, then we're really not allowing it), it's not very likely that anyone's going to make the efforts.

[Tim Bayly]

Dear esteemed sister, Valerie,

Our nation's highest court has ruled that sweat-of-the-brow justifications of copyright are not constitutional.

Granted, much copyright law today has pandered to huge corporate interests in a way that has made a mockery of the history of copyright law, but in this present matter the court's opinions are wise, defending the public against the overreaching private corporations seeking to build their business plan on claims of ownership of public domain works the court explicitly denies them ownership of.

To oppose the court's rulings out of sympathy for those whose investments are devalued by the rulings is neither wise nor just.

These corporations that are seeking to make money from works in the public domain are seeking to do so by the law of copyright. In other words, their claim is a legal one--thus their threat to take to court anyone who acts counter to that legal claim.

Does their claim of copyright stand up to legal scrutiny? No.

Does their threat of court action against Christians stand up to biblical scrutiny? No.

So if our "sympathies are with the publisher," are we saying that we think they should continue to make a legal claim of copyright because making this claim will enable them to get money to cover their investment? If so, we must part ways. It is not right to claim something that is not true. Our nation's courts have explicitly repudiated the heart of EPP's copyright claim.

Again, if our "sympathies are with the publisher," are we saying that we think they are right to threaten Christians with lawsuits in order to enforce their false legal claims? If it's not right to claim something that is not true, it compounds the sin to threaten to take Christians to court to enforce that claim since Scripture also prohibits going to court against one another.

Our sympathies should cause us to repudiate false legal claims and court cases against other believers.

You mention one limitation of your analogy of the cleared parking spot but there are many. The space was not created by EPP but by John Owen. And Owen is dead with his copyright long since expired. The space he cleared has long been in the public domain.

But if you're inclined to pass over this particular subtlety and declare the space to be EPP's digitization of the space, the analogy fails because of the nature of digitization--namely, that the space can be used by an infinite number of people at the same time without the creator of the space losing access to his space.

But if you're inclined to pass over both these subtleties and declare the space to be neither Owen's creative work nor the digitization of that work, but rather the exclusive right to sell that space at a profit, I hope I'm not beating a dead horse by pointing out that there are laws which govern such transactions and those laws forbid anyone claiming exclusive right to sell that space even if one has digitized, added Scripture references, corrected spelling, and made other sweat-of-the-brow but non-creative improvements to that space.

On the other hand, EPP is still freely able to sell their CD or its content--just not to claim copyright over it. And as I've said over and over again, there's no law forbidding EPP from requesting donations from anyone receiving a copy of the CD or its contents.

So what's the problem? Do donations not measure up to the Christian law of sympathy?

Focus on the Family, Mission to the World, Prison Fellowship, Christ the Word, Church of the Good Shepherd, and hundreds of thousands of other organizations look to the Lord's provision through the faithful support of the People of God. They make the case for their needs and the Holy Spirit prompts believers to support them in their work. Thus the oxen are not muzzled as they tread the grain.

Every concern you (and others of our good readers) have raised is perfectly addressed by this business plan. So why write as if it's not an option and sympathy must lead us to support the EPP in their false legal claims and their unbiblical threats of lawsuit against other believers?

Your argument that taking away the ability to claim copyright is such a disincentive that the work of digitizing public domain works would cease is contradicted by the facts. Look at the huge library of public domain works on CCEL's web site, or the mother lode itself--the Project Gutenberg, which states on their web site:

***********************************************
Public Domain Books

These books are in the public domain in the United States and everybody -- including Project Gutenberg and you -- may read and distribute them. If you don't live in the United States you'll have to check the laws of the country you live in before downloading and distributing our ebooks.

A Project Gutenberg ebook is made out of two parts: the public domain book and the non public domain Project Gutenberg trademark and license. If you strip the Project Gutenberg license and all references to Project Gutenberg from the ebook, you are left with a public domain ebook. You can do anything you want with that.
***************************************************

Both CCEL and Project Gutenberg have prospered for many years on the business model of donations. This is the way Christians used to do things.

Valerie, I'm sorry to disagree with you on this, but I consider it a compliment that you took the time to think this matter through and offer this challenge. My respect for you continues unabated.

Warmly in Christ,

Tim Bayly

[Valerie (Kyriosity)]

No need to be sorry about disagreeing...I never doubted we could do so agreeably. ;-)

Please insert "it seems to me" before every opinion I express in this thread. I am truly not offended to be disagreed with, and would truly not be offended to be proven utterly wrong. I also hope I have given no offense in expressing my thoughts, as my respect for you is also without interuption!

I should have been clearer: My sympathy is for the effort they've made, not the threats they've made, especially if they are Christians threatening their brethren, which is a Bad Thing, man. And my sympathy is in general principle, since I didn't read all the details of this particular case (forgive my laziness!).

In my analogy, John Owen created the street. The snow is the out-of-printness of his work. The shoveling is the effort that went into making it accessible again. The publisher's product isn't the street, it's the inches of snowlessness above the street.

Another analogy: If I discovered some ancient cave paintings and excavated a path to them, would it be lawful for me to charge admission? I didn't paint the cave walls, I only put in the effort to allow folks to view them.

As I said, I don't claim to understand the law or rulings that have been made (and haven't read all of this thread), but I readily concede that if, as you've said, this sort of copyright has been forbidden, then it shouldn't be pursued, claimed, invoked in threatening tones. I was trying more to get at the general ideal "right thing to do" -- the moral absolute rather than the legal specifics of a given case.

As for running on donations, that may work for some individuals and entities, but not for all. Your church operates on offerings, but I assume that you operate with an expectation of a certain salary. (I hope that doesn't sound sassy...I don't intend it to be!) Just because St. Paul chose not to accept payment for his labors, doesn't mean every other minister needs to follow suit. Just because Keith Green always distributed his records on a "whatever you can afford" basis doesn't mean Steve Green should have to do likewise. And just because CCEL and Project Gutenberg have decided to do their work on a charitable basis doesn't mean everyone else should be forbidden to do so for profit.

If I were a book publisher reprinting a public domain work, would I not be allowed to charge for the printed volume a price that covered the cost of scanning, proofreading and the like? Why would this suddenly be morally wrong if I were a CD-ROM publisher? And if it is morally OK for the book publisher may claim some legal right to collect those costs, why is it not morally OK for the CD-ROM publisher to do likewise? These questions are at the crux of my opinings.

[Alan]

Valerie, a book publisher reprinting the public domain work can charge for the printed volume. He can charge enough to cover costs and make a healthy profit. Same thing with publishing by CD. Nothing illegal about that.

The problem is that copyright law does not protect him from someone else taking that same public domain work and re-publishing it for personal use or for profit. The law says that if it's public domain, then you can certainly use it and make money off it; you just can't keep others from doing the same.

If you think about it, the moral issue (in this particular case) isn't really all that fuzzy. You have someone making money off the "sweat of the brow" of men (authors and publishers) who are long dead and gone. He pays them no money. He takes some of his own work-- not creative or original, the law says-- and makes money off it.

He may certainly do that. But what moral right does he have to put up a fence around the work of dead authors and publishers to keep other people out?

[Valerie (Kyriosity)]

Alan,

I didn't think anyone was questioning whether the work could also be published by anyone else, but whether it could be republished by someone else *using the initial labors of another digital republisher*. Copying and pasting the text the first guy produced through laborious scanning and editing would be parallel to waltzing into the book publisher's premises and claiming the right to use the plates with which he produced his printed edition.

I thought that was the pith of what the digital publisher was trying to protect himself from. Am I misunderstanding the whole issue?

[Tim Bayly]

Dear Valerie,

As I've written before, by your logic I would be perfectly within my rights to take one of my antiquarian books--say, for instance, my first edition of Richard Baxter's paraphrase of the New Testament (likely my most valuable book), place it on my scanner page by page, press the button hundreds of times that turns it into a digital picture, print a hard copy of each picture on a piece of paper, collate and bind those copies, and hand that bound copy of my copy to another man with the explicit demand that he give me, say, one hundred dollars for the purchase of it.

No one would argue with my demand because the demand isn't based on a claim of copyright. Rather, it's a simple sale of a possession. I'm standing there holding the copy he wants and it's going to be very hard for him to get a copy anywhere else. So far, so good.

But let's suppose the man turns around and tells me he'd like me to loan him my first edition of Baxter's paraphrase so he can make other copies of it and sell those copies, pocketing the profit himself. I respond that I won't loan it to him because making many copies of it would harm the book's value causing a degeneration in its physical condition.

Again, no one would argue with that. It's not copyright at stake, but a man being able to protect the value of his possession.

But let's suppose the man then proposes to me that, instead of using my first edition of Baxter's paraphrase, he'll use the photocopy I just sold him and make his copies from that copy, selling those copies of his copy of my copy for a profit.

To which I respond, "Oh no you don't! I have a lot of money invested in owning the book, the scanner, the printer, and all the paper we used. Plus I have a lot of work invested in making your copy. To protect my significant investment, I've copyrighted that copy I just handed you and if you make a copy of it I'll take you to court because you're a thief and you're violating copyright law. My investment gives me the right to make money on that copy you're holding in your hand as well as the copy of that copy you give to your daughter, the copy of the copy of that copy your daughter gives to her roommate, and so on--forever down the line."

Well, the idea that someone would try to place a copyright on a facsimile copy of a work in the public domain is laughable. I have many volumes in my library--between fifty and a hundred, in fact--that are simple facsimile reproductions of an historical work in the public domain, and the idea that someone would try to prohibit me from scanning and printing and selling copies of one of those facsimile works by threatening me with copyright is ludicrous. Why?

Because copyright isn't given for ownership of the original, ownership of a scanner, ownership of a printer, and so on, nor is it given for work holding the book on top of the scanner, turning pages, resetting the book on the platen, pressing buttons, replacing toner, collating, or binding. After all that investment and work, we're left not with a work of my creation, but rather with a copy of a work of Baxter's creation, a work that's long been in the public domain and cannot be copyrighted.

The status of the work didn't change because it went from old typeset pages printed on linen to a new scanned picture printed on wood pulp. Nor did its status change because I took my analog copy and digitized it, printing a second copy from that digitized version.

But what if, instead of shooting the digitized copy over to my printer, I shot it through an OCR program on my computer and printed a copy of the results on a CD? Because a machine produced words printed by laser on plastic rather than a machine producing pictures printed by electrostatic charge on paper--does that give me copyright?

I think you all know what's coming. No, that does not give anyone a copyright.

But what if we correct the spelling, hyperlink the Scripture references, things like that. Then could we claim copyright?

No, this work is no different than the work of pressing the scanner button or placing the original on the scanner's platen. Anyone doing any of these tasks would do them in the same way, following universal standards, and so by definition the work is neither original nor creative, and it can't be copyrighted.

Yes, I know I'm sounding like a drone.

If I want, I can sell my Baxter paraphrase itself for as much as I can get for it, but I may not forbid the purchaser from using his purchase (which is really just one more in a long line of copies of an original creative work) to make copies to give away or sell to others. That's what it means for a work to be in the public domain: it can't be copyrighted--not the original first edition copy, not an old analog facsimile reprint, not a modern digitized facsimile reprint, and not a scanned OCRd reprint.

The simple fact is that Christian businesses who invested money and time in publishing old theological works thinking that their hard work would grant them copyright were wrong, and hence made a bad investment. In fact, their work cannot be the basis of copyright since it lacks originality and creativity. So the true situation is not at all the way these businesses frame it on their products and web pages:

***We hold copyright on this work you have purchased from us and you're a thief if you make a copy for anyone else without that person paying us royalties. Do it and we'll catch you and prosecute you for stealing, because that's what copyright infringement is.***

Rather, the true situation would be framed in this way:

***Since these works on your disk are in the public domain, we cannot demand that you not reproduce them either to give away or to sell. We know how simple it is to reproduce them because that's how simple it was for us to make the copy we just sold you. However, please bear in mind that behind that work of reproduction is a lot of other work scanning, OCRing, proofing, creating Scripture hyperlinks, etc. and every person who receives a copy of these works will be a beneficiary of that work also.

Out of kindness to us, then, would you please encourage those who are able to buy these works to come to us for their purchase so we can recoup our investment and support our families? Acknowledging that requests of support ought to be matched with candor on the part of the one seeking support, we have placed audited financial statements on our web site. There our supporters will be able to keep track of where our donations are in comparison to our past and present investments.

We'll make no legal threats, but we will remind you that Scripture teaches the workman is worthy of his hire.

And that workman is us, folks! Thank you for your support.***

Put away the legal claims and threats of lawsuits and things become simple.

[Nick]

You are brilliant! So brilliant! You know more than most law professors!

[Tim Bayly]

Dear Nick,

I'm not bright--that's my brother, David. I'm just a fool who knows how to plod with great persistence and to listen carefully to my wise lawyer-friends.

Love,

Tim Bayly