Digital Disobedience

At what point in the social life of a work of art (or a work of information) does the work effectively become public property, even if it remains formally subject to private rights?

The folks at Downhill Battle are testing this proposition with an “Eyes on the Screen” campaign to liberate the classic documentary of the civil rights movement, Eyes on the Prize. In the name of fair use, DB is encouraging individuals to distribute the film via BitTorrent and organize public showings on February 8. Boingboing supplies the link.

Is Eyes on the Prize really the best test case for what might be called “cultural adverse possession” or a “cultural prescriptive easement”? (Adverse possession and prescriptive easements being concepts from the law of real property that award ownership or use rights to long-time occupiers or users of land, even over the objections of the true owners.) Or even a “cultural essential facility,” to invoke a rarely-used doctrine from antitrust law. The likelihood that the owner of a copyright interest implicated in Eyes on the Prize will pop up and sue anyone for showing the film on February 8 is pretty low, and if someone were to sue, this might be the one and only instance where an equitable “ironic symbolism” defense should kick in. Showing a film about civil rights to make a point about civil liberties? The plaintiff might find a sympathetic district judge somewhere, but any right thinking appeals court would find a way to toss this one out. File this hypothetical with the “what’s sauce for the goose is sauce for the gander” reasoning that the Ninth Circuit used in rejecting Larry Flynt’s effort to sue Jerry Falwell for copyright infringement.

The classic example, but one that (like Eyes on the Prize?) may be completely unique, is the Zapruder film of the Kennedy assassination. The U.S. government now owns the film. The Zapruder estate still owns the copyright, but it has virtually no ability to prevent use of the “work.” Or is that the point? Almost every work protected by copyright has some substitutes, at some price. Markets for taste and culture depend on that. But something that is absolutely and pristinely unique and irreplaceable, something like the Zapruder film, isn’t part of any market, and we know that isn’t entitled to much legal protection, if any.

In ordinary property law, uniqueness of that sort entitles the owner of the object to extra legal protection. In intellectual property law, is it the case that this sort of uniqueness entitles to owner to less protection? Even zero protection?

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