The conventional “copyfight” wisdom is that excessive emphasis on copyright’s property-like character can lead to quashing, instead of promoting, innovation and creativity.
Too much copyright (and badly understood copyright) has other pernicious effects. Today’s example: the recent opinion of the Supreme Court of Arkansas in Arkansas Democrat-Gazette v. Brantley. There was an auto accident. A local newspaper took photographs of the accident scene. The victims sued the perpetrator for negligence, and asked the trial court to issue a subpoena for the photographs taken by the newspaper, including unpublished photos. The newspaper refused to comply unless it was paid what it deemed to be the reasonable cost of the copies: the full market value of all of the photos, reflecting their value as copyrighted property. The trial court ordered the newspaper to produce the photos. The newspaper petitioned the Arkansas Supreme Court for an order requiring that the paper get its full price. The Arkansas Supreme Court granted the petition, effectively allowing the newspaper (or any litigant) to hold up the civil litigation process — not a copyright case, but any case — on the ground that the evidence is covered by some copyright interest.
Here’s the key quotation, which the court borrowed from Images Audio Visual Productions, Inc. v. Perini Bldg. Co., 91 F. Supp. 2d 1075 (E.D. Mich. 2000):
[T]he Court cannot ignore the important distinction between copyrighted works that happen to capture information that proves relevant to subsequent litigation, and works that are intended to capture such information, specifically for the purpose of litigation. In the latter case, where judicial proceedings are one of the intended markets, the copyright holder is entitled to exercise control over the use of his works within this market; the fair use doctrine does not require the wholesale abandonment of copyright protection at the courthouse door. Because it does not, it is irrelevant whether Plaintiff demanded an excessive price for additional copies of its photos, or whether it could have been more reasonable in permitting reproduction in color photocopies rather than photographic reprints. As a copyright holder, Plaintiff generally was under no obligation to be reasonable. Rather, beyond establishing the contours of the rights conferred, copyright law leaves such considerations of “reasonableness” to be governed by traditional market principles.
The Images Audio opinion is suspect (the case is mainly an application of the fair use doctrine), but it dealt with one litigant’s unauthorized reproduction of photos that it had originally commissioned from a commercial photographer, and for which it originally promised to pay a market fee. It had nothing to do with collecting evidence, or with the discovery process. Arkansas Democrat-Gazette applies the quote to the production of evidence by a non-party that had no prior relationship — commercial or otherwise — with the underlying lawsuit or the parties.
It’s too bad that the case didn’t present a question of preemption of state law by federal copyright law, because if ever a situation called for the application of federal information law policy by a court with some expertise in the matter, this was it. The lawyer for the newspaper argued, “This is copyrighted material . . . we’re not talking about xeroxing off some stack of documents.” This, of course, is precisely backwards. Documents are just as likely to be copyrighted as photographs. A party producing either sorts of things in discovery is entitled to the reasonable costs of finding and reproducing them — search expenses, duplication expenses, delivery expenses. But the court agreed with the newspaper, calling the case a question of “the appropriation of private property.” Ouch. How about the appropriation of equal access to justice?