Discussion:
What is the name of your state? Kansas
This may be a contract question, but I thought I'd ask it here as it is partially a copyright issues.
I've found a dealer selling a large chunk of public domain information and want to purchase it from him. He sells it on his website on CDs and DVDs. Problem is, for purchasing the whole set, he wants a signed statement to the effect that the material is 'for personal use only and not for resale'.
The material itself (audio) is in public domain. He has gathered it off the net and run it through a freeware volume leveling application and stripped the ID3 tags.
Question is, what is the legal strength of the signed statement? I know he has the right to protect "The Collection", but can this apply to the source material? I don't want to put any restrictions on what I can and can't do with the material down the road.
Thank you for your answers and advice.
Kevin
Answer:
If the material is really public domain, then he cannot protect it. Merely putting the material through a program to normalize the levels would not be sufficiently "transformative" for him to have created a derivative work that could be copyrighted. Further, the compilation itself -- unless it is somehow "creative" -- is also not likely to be protectable either.
Of course, this is only true IF the material is, in fact, public domain. Unless the audio recordings date back to the early 1900's, I wouldn't count on the materials really being public domain...
"what is the legal strength of the signed statement?"
Again, if the material is really public domain, then the material belongs to everyone, and he can't keep anyone else from doing with it as they please.
Answer:
Thanks for a great answer. I really appreciate it.
Kevin
Answer:
Originally posted by divgradcurl

Again, if the material is really public domain, then the material belongs to everyone, and he can't keep anyone else from doing with it as they please. What can be protected is the format used to present the information. Some goofball in a question mark jacket sells thousands of books on how to get money from the government. All the info in the books is public information available free but Mr. Lesko will sue anyone at the drop of the hat that tries to do what he is doing. And he has been very successful doing just that. The information may be free but the work to compile and present that info can be protected by copyright. And yes, the author of that info can place limits on the info you buy from him.
Answer:
"The information may be free but the work to compile and present that info can be protected by copyright."
racer72, I must respectfully disagree with you on this. In Feist v. Rural, the major case on point here, the court specifically pointed out that copyright law did not protect the "sweat of the brow" but only protected actual creativity.
"All the info in the books is public information available free but Mr. Lesko will sue anyone at the drop of the hat that tries to do what he is doing."
That may be true, but would he prevail? As all of his information is public domain, it would appear that the Feist holding would allow someone to purchase his book, copy everything out of it, and create a new book sell it as their own -- as long as they didn't copy any of the "creative" aspects -- such as the name Matthew Lesko and so on, or make an actual physical copy of the book to sell. Matthew Lesko certainly holds a copyright on his book, but he doesn't have a copyright on any of the public domain materials inside.
"And yes, the author of that info can place limits on the info you buy from him."
I don't believe this is the case, but I'll have to look it up later this evening. I know that in patents, any contract or license that involves a patent is voided once a patent expires -- it would be against public policy for a patent owner to be able to extend his monopoly in that way. In the same sense, allowing someone control over public domain material would seem to have a similar flaw -- basically giving copyright-like protection to material that is free for everyone.
Of course, if someone does something "transformative" to a public domain work, they can get a copyright on THAT work, but still cannot obtain any control over the original public domain work -- they can't keep others from creating their own derivative works.
Answer:
In researching another case I came across the final answer for the OP. The person that created the work from information in the public domaim may copyright and protect their work as stated in the Lanham Act section 43(a) and in a similar case the law was upheld by the Supreme Court in the Dastar v. 20th Century Fox et al. The decision by the SCOTUS specifically states that someone may take information considered to be in the public domaim and place their own copyright protections and limitations on what is considered their own work. So for the OP, yes the person selling the information can now claim ownership of the information and place their own limitations on what is now their own piece of work. In the Supreme Court decision above, the Justice that wrote the decision specifically states that the compiler of public information can now be consider as the "creator of origin" and that body of work can be protected by US copyright laws. If the information is truly in the public domain, you can collect and disimate that information as you wish, you can't use someone else's protected work though.
Answer:
racer72,
I don't think that's what Dastar says. With respect to the Lanjam act claims, Dastar notes that the Lanham act cannot be used to extend protections under Copyright or Patent that have been lost:
"In sum, HN10reading the phrase "origin of goods" in the Lanham Act in accordance with the Act's common-law foundations (which were not designed to protect originality or creativity), and in light of the copyright and patent laws (which were), we conclude that the phrase [***26] refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods. Cf. 17 USC § 202 [17 USCS § 202] (distinguishing between a copyrighted work and "any material object in which the work is embodied"). To hold otherwise would be akin to finding that § 43(a) created a species of perpetual patent and copyright, which Congress may not do. See Eldred v. Ashcroft, 537 U.S. 186, 208, 154 L. Ed. 2d 683, 123 S. Ct. 769 (2003)."
Dastar does note that a compilation can be copyrighted; however, "Copyright of collection of works, some of which have been previously copyrighted, protects only what is original in new collection. Andrews v Guenther Pub. Co. (1932, DC NY) 60 F2d 555."
As long as the OP does not copy that which is new -- that is, the form and style of the compilation -- he is free to copy the public domain material and put it into his own format. To give the compilation owner protection over public-domain content in his compilation would be equivalent to granting a perpetual copyright on the material.
Finally, one last thing -- "Copyright protection afforded compilation, which is distinct from that afforded to discrete works that comprise compilation, does not extend to individual and independent works within compilation as distinct works in and of themselves; thus, author of individual work contained in copyrighted compilation cannot maintain infringement action where author has not registered her own copyright in individual work. Morris v Business Concepts, Inc. (2000, SD NY), Copy L Rep (CCH) P 28064, 28 Media L Rep (BNA) 2175, 54 USPQ2d 1561." This notes that the opcyright on the compilation is distinct from any copyright on the individual components of the compilation. You aready noted that in an earlier post, but I just wanted to reiterate.
Answer:
Thanks for the continued information from all of you. The concept is that I'm not just going to reproduce the material, I'm going to reorganize the material and distribute it in my own 'collection'. Anyway, the current organization would be hard to prove as 'creative' or original.
Thanks again.
Kevin