Page:Fair Circumvention.djvu/41

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own two-volume biography of Washington.[1] Justice Story found that both Washington’s private[2] and public correspondence[3] were covered by copyright. Justice Story, although “not without some regret,”[4] came to the conclusion that the defendant had simply taken too much of the plaintiff’s work, and issued a permanent injunction against the

publication or sale of the defendant’s two-volume Washington biography.[5] He based this decision on the likelihood that the defendant’s work would dampen market demand for the plaintiff’s work by supplying an effective substitute:

If so much is taken, that the value of the original is sensibly diminished, or the

labors of the original author are substantially to an injurious extent appropriated by another, that is sufficient, in point of law, to constitute a piracy pro tanto. . . . In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or

diminish the profits, or supersede the objects, of the original work.[6]

  1. Id.; see also id. at 348 (“[I]t cannot be doubted, that these letters are the most instructive, useful and interesting to be found in [plaintiff’s] large collection.”).
  2. See id. at 345-47. Although recognizing uncertainty in the law regarding the copyright status of private correspondence, id. at 346, Justice Story found persuasive a line of English authorities recognizing the author’s copyright, subject to a limited publication right held by the addressee. See id. at 346-47. The question of copyrightability vel non would not, of course, arise under the present state of copyright law. See 17 U.S.C. § 102(a) (2006) (“Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression . . . .”); see also Salinger v. Random House, Inc., 811 F.2d 90, 94-95 (2d Cir. 1987) (recognizing author’s copyright in private correspondence).
  3. See Folsom, 9 F. Cas. at 347. Justice Story’s discussion of the copyright status of Washington’s public correspondence was comparatively cursory in view of his finding that “of the letters and documents published by the defendants, not more than one fifth part are of an official character.” Id. He reasoned, in essence, that the copyright status of private correspondence extended by analogy to public correspondence as well, subject to a colorable publication right in favor of the government. See id. The uncertainty surrounding the copyright status of Presidential documents has only partly abated since Story’s time. Compare 17 U.S.C. § 105 (2006) (denying copyright protection to “any work of the United States Government”) with 44 U.S.C. § 2202 (2001) (granting to the Government “complete ownership, possession, and control of Presidential records”) and Exec. Order No. 13,233, § 3(d)(1), (2), 66 Fed. Reg. 56,025, 56,026-27 (Nov. 1, 2001) (forbidding public disclosure of records of past Presidential administration except upon the joint consent of both the former and incumbent Presidents). An informative assessment of the proprietary status of Presidential papers is available in Jonathan Turley, Presidential Papers and Popular Government: The Convergence of Constitutional and Property Theory in Claims of Ownership and Control of Presidential Records, 88 Cornell L. Rev. 651 (2003).
  4. Folsom, 9 F. Cas. at 349.
  5. See id.
  6. Id. at 348. Elsewhere in his opinion, Justice Story offered an illustrative example of the sorts of uses that might pose such a substitution risk:

    [N]o one can doubt that a reviewer may fairly cite largely from the original work, if his

    design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticise, but to supersede the use of the original work, and

    substitute the review for it, such a use will be deemed in law a piracy.

    Id. at 344-45.