Mini Kilobox Communiqué

Copyright does not protect the fruits of your hard work. It just doesn’t. No matter what you’ve heard, the legal basis for copyright — in US law and in international treaties — is to protect creativity, not effort.

If you labor for five years to create a faithful catalog of all the houses in a city or all the books in a library, with the goal of creating as faithful, logical and linear resource as possible, copyright holds no protection for you.

On the other hand, if you dash off a haiku in five seconds, copyright will reward you with the exclusive right to reproduce, display and adapt your work, for your entire lifetime and 70 years beyond.

Copyright rewards creativity, not effort.

But there’s a weird exception to this rule: a “thin” copyright for “compilations.” Create a catalog of just the good books in a library or just the nice houses in a city and the law will extend you some copyright over this, meant to reflect the subjectivity of your judgments.

If this sounds like a “standard” with some very fuzzy edges, that’s because it is.

Enter Robert Hovden, a physics prof with a history of provocative copyright projects that highlight some of the internal contradictions and bizarre results of copyright’s applications.

Back in 2014, Hovden created a controversy by reproducing MC Escher etchings at nanoscale on silver discs, which he sold to collectors. The Escher estate — notoriously litigious copyright extremists — took the bait and threatened a suit.

https://www.theverge.com/2014/11/19/7243301/a-nanoscale-art-exhibit-tests-the-limits-of-copyright

“The size of the (unauthorised) reproduction is irrelevant… What actually does amaze me, is the fact that you write that it is an artist who produces these small works. An artist should realise whether something is original, or just ordinary thievery.”

You really couldn’t ask for a better (worse) response — from a licensing manager’s blanket statements about “originality” that are clearly (perhaps wilfully) ignorant of the artistic debate about originality, to claims of “thievery” in molecule-sized reproductions.

I mean, fair use is a complicated subject, but one of the factors judges are expected to weigh is “the effect of the use upon the potential market for or value of the copyrighted work.”

https://pluralistic.net/2021/07/30/space-marines/#fairy-use-tale

Even if you stipulate that everyone who purchases a reproduction that’s only visible under an electron tunnelling microscope will buy one fewer lithograph, we’re still talking about a vanishingly tiny impact — like, nanoscale.

Hovden’s latest is filing for — and receiving — a copyright on a Magic: The Gathering deck he calls “Angels and Demons.” This deck — a collection of cards made by a corporation through work-for-hire arrangements with creators — is now claimed as Hovden’s exclusive IP.

Hovden’s public communications around this tease that he may prohibit others from using this deck in tournament play, and says it’s all about “owning culture and people’s participation in culture through copyright.”

The implication is that this could spark a stampede to register copyright in M:TG decks — which are painstaking assembled for home games and tournament play, sometimes with big-dollar cash payouts — and take the best decks out of the game.

This is indeed a gnarly question about the ethics, mechanics and practicalities of US copyright law.

Luckily, there’s an outstanding resource for people who want to go beyond the provocative thought-experiment and delve into the esoterica.

Back in 2014, Jennifer Jenkins and James Boyle published the “Open Intellectual Property Casebook,” a free, superior replacement for the standard law school textbook that sold for $200.

https://web.law.duke.edu/cspd/openip/#q01

Jenkins and Boyle are two of the country’s most esteemed copyright scholars with a flair for producing distinctive and accessible copyright texts aimed at students, scholars and the general public.

They’ve published some seriously great classics, like BOUND BY LAW, a primer on fair use and film in comics form:

https://law.duke.edu/cspd/comics/

And THEFT: A HISTORY OF MUSIC that isn’t just a great comic — it also reveals that the MC Escher estate’s beliefs about “orginality” are ahistorical, legally incoherent, artistically nonsensical tosh.

https://web.law.duke.edu/musiccomic/

The fifth edition of the IP Law Casebook just dropped, and it features an outstanding and accessible discussion of Kregos, a seminal 1984 case about a guy who made a baseball pitching stats card that the AP reproduced.

https://web.law.duke.edu/cspd/papers/pdf/ipcasebook_chap-11.pdf

Kregos — and a companion case, Eckes, about a list of the most valuable sports cards — are an excellent framework for understanding copyright’s “merger” doctrine — the principle that works where “expression” and “idea” can’t be separated are ineligible for copyright.

Copyright’s scope isn’t just limited to “creativity” and not “hard work” — copyright also only protects “expressions” and not “ideas.” Like, you can copyright your verse-verse-chorus hardboiled detective novel, but not the idea that it’s derived from.

If you thought creativity-vs-work made for hard cases, merger is just bonkers. The contrast between the rulings (and dissents) in Kregos and Eckes make for brain-melting, fascinating, chewy philosophical reflection (and the casebook does such a good job of surfacing this).

I asked Boyle how he thought Kregos applied to Hovden’s copyrighted Magic deck. He told me that while a Copyright Office registration nominally carries the implication that the underlying work is truly original and eligible for copyright, “courts give this varying weight.”

On the question of the “thinness” of Hovden’s copyright, Boyle was less clear. When I asked him whether swapping one or a few cards out of Hovden’s deck would make your deck safe, he said it was “anyone’s guess.”

More interesting is the question as to whether playing the deck is a violation at all.

Boyle: “I could in theory get a copyright on a list of Cory’s stories in the order to reveal his deep Machiavellian plan to foist Zoroastrianism on the world. But if someone reads that list and chooses to read the stories in that order, they don’t owe me money — they didn’t copy the list. They just took the ideas and facts I offered and used them. If you sold copies of his collection of cards, maybe you would violate. But if you assemble your own deck with his cards in it? The argument is much weaker.”

If you want to understand these nuances, I strongly recommend Jenkins’ and Boyle’s free casebook.

Indeed, it’s increasingly true that if you want to understand the fine points of law, you can rely on free texts. The IP Casebook inspired a flood of law scholars to make their own free/open texts that are free, adaptable, and universal.

There’s Barton Beebe’s “Trademark Law: An Open-Source Casebook.”

http://tmcasebook.org/

Jeanne Fromer and CJ Sprigman’s “Copyright Law: Cases and Materials”

http://www.copyrightbook.org/

Lydia Loren and Joe Miller’s IP Law: Cases & Materials:

https://www.semaphorepress.com/IntellectualPropertyLaw_overview.html

On his own, Joe Miller published Patent Law: Cases & Materials:

https://digitalcommons.law.uga.edu/books/97/

Lisa Ouellette and Jonathan Masur’s Patent Law: Cases, Problems, and Materials

https://www.patentcasebook.org/

Matthew Sag’s Extended Readings on Copyright:

https://matthewsag.com/eroc/

For an excellent, up to date list of open IP textbooks, see James Grimmelmann’s master list of “Inexpensive and Open-Access IP and Technology Casebooks.”

https://james.grimmelmann.net/files/casebooks

That list includes Grimmelmann’s own “Patterns of Information Law.”