Note: This post expands on an issue I discussed at a State Bar of Nevada CLE Course entitled “What Lawyers and Music Professionals Need to Know”. For further information, written materials, and/or video of the CLE please contact the CLE Department of the State Bar of Nevada at (702) 382-0504 or http://www.nvbarcle.org

It goes without saying that a good lawyer should always stay on top of the most recent and relevant cases in his/her particular field(s). What happens, whenever, when there is a lack of relevant case law on an issue? When I first started practicing law I remember being frustrated at the lack of case law on certain issues. Even if I were able to find a case that was remotely on point to my issue, oftentimes it a 19th century railroad case that had little to no factual resemblance to the issue that was at hand.

One day I was bemoaning the fact that the only relevant case I could find on a certain issue was, in fact, a Nevada Territorial Supreme Court case, when a colleague shared with me an excellent tip to turn lemons into lemonade. If opposing counsel had a recent case that was right on point, and all you had was a 100 year old case involving a cow that was run over by a train (you’d be surprised how many of those there are in Nevada), then your argument should focus on how the legal concept that you are advancing was so “well established”, “venerable”, and (insert your favorite adjective here), that the Courts have “consistently held” such “firmly grounded principles” for X amount of years. “I’ll be darned,” I exclaimed. “That sounds crazy enough that it might work!” OK, I actually never said any of that.

I urge strong caution, however, to any lawyer who wishes to make what I like to call “historical arguments” in their motions, briefs, etc. One does not merely cite to the Code of Hammurabi, without any supporting legal authority or reason, and expect to be taken seriously in a Court of law. A firm understanding of the historical sources of law, however, is essential when you are working in a field of law (such as intellectual property) whose factual scenarios are constantly evolving and changing with the advance of technology. If one has a firm understanding of the historical basis of a legal principle, then one can apply that principle to the facts at hand. Another note of caution- I am a self-proclaimed history nerd who would love nothing more than to cite ancient treatises in all of my briefs. That being said, I have only advanced “historical arguments” a few times in my life, and only because either 1) the legal concept was so overwhelmingly associated with a historical figure/thought that it would have been an oversight not to mention it; or 2) opposing counsel opened the door by proclaiming that their argument was supported by “long-standing legal tradition” (or something to that effect). Of those few times I have also been ridiculed by a Judge for citing to Cicero. So be forewarned…

So, getting to the point: Where does this play into Copyright law? The notion of copyright is a relatively modern concept, and for obvious reasons. The printing press was not invented until the 15th century, and sound recordings were invented in the 19th century. At its core Copyright law involves a balance of two major considerations: personal property rights vs. mankind’s desire to create and share art. Jeff Tweedy once wrote “if the whole world’s singing your songs/and all of your paintings have been hung/Just remember what was yours is everyone’s from now on”. In 1,000 years do we want future civilizations listening to The Beatles, or do we want the master tapes to decay in a University library somewhere because at some point in history the copyright holder took steps to essentially stop further reproduction of the music? This is an extreme example but a hypothetical I like to use to illustrate the balancing issue I explained above. Surely a middle ground can be reached between the property rights and income of the copyright holder and society’s need/desire to appreciate art, music, and literature. In theory, this is the aim of copyright law.

Although the technology that creates copyrighted work is relatively new (and is changing every day), copyright law does incorporate ancient legal traditions of property rights. Further, humans have been creating and sharing art since our ancestors started drawing on cave walls. Accordingly, as with all good legal discussions, I would like to start my discussion of copyright law by citing to “ancient and venerable” authorities which support property rights.

US CONSTITUTION

Before you get carried away on a historical adventure, the US Constitution is an excellent starting point when analyzing a copyright issue. This is because copyright laws and protections are written directly into the Constitution. Article I, Section 8, commonly referred to as the “Copyright Clause”, grants Congress the power:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

US Copyright law has also been codified by various Copyright Acts, most notably the Copyright Act of 1976 and the Digital Millenium Copyright Act (1996). Additionally, Copyright law is codified in Chapter 17 of the US Code. There’s a good chance that the authority you are seeking is contained in either the US Code and/or case law interpreting the code. I’ll explore the various Copyright Acts and US Code in further posts, suffice to say for now they exist and are controlling law in the United States of America.

NEVADA

I mention Nevada not only because I am licensed to practice law here, but also because Nevada has  excellent  authorities which allow for a bit of historical analysis in the event that you cannot find any relevant court cases regarding your issue. Indeed Nevada Courts have recognized that the oldest source of Nevada law is the English common law as it existed at the time of the American Revolution in 1776. Hamilton v. Kneeland, 1 Nev. 40 (1865). Further, NRS 1.030 states that the common law of England shall be the rule of decision in all courts of this state “so far as it is not repugnant to or in conflict with the Constitution and laws of the United States”. So, just a friendly reminder not to make any repugnant legal assertions in your arguments.

As Nevada case law on Copyright is practically nonexistent (more on that in another post), there is a good chance that if you are litigating a copyright matter in Nevada you will have to cite to other jurisdictions. With the caveat that this post should not be construed as legal advice, citing to Hamilton v. Kneeland before you launch into some lengthy historical argument might not be a bad idea.

ROMAN LAW

If you are truly interested in this subject, I would recommend you read The Roman Law Roots of Copyright, 59 Md. L. Rev. 522 (2000) by Russ Ver Steeg. It essentially covers everything I am talking about in this post but in greater detail and with an air of academic credibility of which I am noticeably lacking.

He notes Roman property law recognized the existence of both tangible (res corporales) and intangible (res incorporales) works. See Id. at 531. The Romans noted that intangible objects “could not be held in hand like physical objects”. Id at 532. Various examples of intangible rights include right to cross another’s land, draw water from aqueducts, and utilize another’s laborers. Here we can see the beginning of the modern concepts of easements and labor laws. As we analyze modern intangible concepts such as streaming, air time, etc. it is good to know there is historical precedent discussing intangible property rights.

Additionally, the modern concept of public domain has its roots in the Roman property principle of usufructus, meaning “a right to use and enjoy the things of others but keeping the substance of those things intact”. Id at 534. Bear this in mind when analyzing issues involving the public domain and fair use.
Ver Steeg has done about as thorough a job as anyone ever will writing on this subject. As such I won’t try to expand much further other than to cite to the above and suggest you read further if you are interested. Also his name is Russ, which gives him automatic credibility in my book.

ENGLISH LAW

The Statute of Anne was enacted in 1710 by the Parliament of Great Britain. I find its preamble to be an excellent summation of the goals of copyright law.

An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned.

This brief sentence is an excellent short description of Copyright law. Interestingly, compare it to the language from the Copyright Clause of the US Constitution noted above. Notice any similarities? Of course you do.The Statute of Anne was also noteworthy as it allowed for copyright infringers to be punished at a penny per page per infringed work.
I could dedicate an entire post to British common law cases regarding copyright law, but for purposes of brevity I’ll focus on Donaldson v Becket, a 1774 case in which the Courts addressed the issue of whether a copyright holder held his/her rights in perpetuity or not. Apparently this controversy was so heated that it was dubbed the “battle of the booksellers”. The Court ultimately held that authors had the exclusive right to the first publication for perpetuity, but the right was annulled once the work was published.

The actual text can be found here and is quite lengthy. It is also entertaining, and I have included the following quotation for no other reason that to demonstrate that I am not alone when I resort to ancient authorities to support modern copyright arguments:

Lord Lyttelton spoke in favour of authors; and, in opposition to the doctrine laid down by lord Camden, urged, that the science of literature, though not tangible, was nevertheless property; and that it must receive a very sensible shock from the reverse of the decree, should it unfortunately take place. He spoke very ingeniously on the subject; traced the origin of the arts and sciences from Greece to Rome, Arabia, &c., and at last seated them in Great Britain. He introduced a high panegyric on his present Majesty and the king of Prussia, under whose patronage they so much flourished; and represented them as the only crowned heads who were either men of learning themselves, or encouragers of literature.

For more information on English and Colonial copyright law see Patterson, L. Ray; Joyce, Craig (2003) Copyright in 1791: An Essay Concerning the Founders’ View of Copyright Power Granted to Congress in Article 1, Section 8, Clause 8 of the U.S. Constitution, Emory Law Journal (Emory University School of Law)

And of course, this post would be incomplete without….

THE CODE OF HAMMURABI

The Code of Hammurabi, section 22, states that “If any one is committing a robbery and is caught, then he shall be put to death.

I would love to see someone cite to this code in a copyright infringement lawsuit. Just leave my name out of it. All kidding aside clearly we see in ancient civilizations personal property rights were held in high regard.

#274 If any one hire a skilled artisan, he shall pay as wages…five gerahs, as wages of the potter five gerahs, of a tailor five girahs,…of a ropemaker four gerahs,…

I find this interesting if for no other reason than the fact that, even in ancient times, “skilled artisans” were respected for their work to the point that the law demanded they be paid a fair wage for such work. Thus, even in ancient times, humans had a reverence for art and respect for those who created such art, and created laws to ensure that the creators of art were properly compensated for it. This same concept holds as true today for authors, musicians, etc. as it did for potters and ropemakers thousands of years ago.

CONCLUSION

“Any attorney who cites to this code shall be put to death.”

So there you have it, some historical foundations for modern copyright law. I realize this post may be long for an online blog but it an expansion of a discussion I had at a Nevada CLE course, and is IMHO an excellent starting point for a blog devoted to entertainment law. This discussion is also by no means exhaustive, there are many more historical sources for modern copyright law. For further reading I would recommend any of the sources above, or you may contact me for additional links/sources. I hope to expand upon this topic in future posts as well.

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