An Information Theory of Copyright Law

• Publication year: 2014

An Information Theory of Copyright Law

Jeanne C. Fromer

AN INFORMATION THEORY OF COPYRIGHT LAW^†

Jeanne C. Fromer^*

ABSTRACT

The dominant American theory of copyright law is utilitarian, in offering the incentive of limited copyright protection to creators to generate material that is valuable to society. Less settled is the question of the sorts of works that copyright law seeks to encourage: Ever more copyrightable creations? Only some that are artistically worthy? What makes a work valuable to society? This Article seeks to answer important aspects of these questions by examining them through the lens of information theory, a branch of applied mathematics that quantifies information and suggests optimal ways to transmit it. Using these concepts, this Article proposes that what makes expressive works valuable to society is that they make a contribution in at least one of two principal ways: by using that expression to communicate knowledge—be it systematic, factual, or cultural—and by conveying expression that is enjoyable in and of itself. Information theory sheds light on how copyright law can spur these valuable works. In undertaking this analysis, this Article explores the implications for the central doctrines of copyright law, including copyrightability, the idea-expression distinction, infringement, and fair use. In this context, this Article also considers whether we want distinct creators communicating these valuable types of information or whether it is optimal to unify particular communications of information in a single creator.

[Page 72]

Introduction...............................................................................................73

I. Copyright Law.................................................................................74
II. Information Theory........................................................................76
III. An Information Theory of Copyright Law................................83

A. Noisy Expression Containing Knowledge .................................. 85
B. Expression Generating a Noisy Discussion................................ 92

IV. Applications in Copyright Law.....................................................97

A. Idea-Expression Distinction ....................................................... 97
B. Originality and Independent Creation ..................................... 102

1. Independent Creation......................................................... 103
2. Modicum of Creativity........................................................ 105

C. Copyright Infringement............................................................ 107

1. Should Any Copying Be Infringement ................................ 108
2. Substantial Similarity and Derivative Works ..................... 109

D. Fair Use .................................................................................... 113
E. Dissemination ........................................................................... 117

1. First Sale Doctrine ............................................................. 118
2. Secondary Liability ............................................................. 119
3. Search Engines................................................................... 121

F. Preservation ............................................................................. 123

1. Works in Multiple Formats................................................. 124
2. Deposit ............................................................................... 126

G. Error Correcting Codes ........................................................... 127

Conclusion.................................................................................................127

[Page 73]

Introduction

The dominant American theory of copyright law is utilitarian, in offering the incentive of limited copyright protection to creators to generate material that is valuable to society. Less settled is the question of the sorts of works that copyright law seeks to encourage: What makes a work valuable to society? Does copyright law just want ever more expressive creations? Does it want to encourage only some that are artistically worthy? Does it want to stimulate as many works as possible without regard to these considerations? or does it want to encourage something else? This Article seeks to answer important aspects of these questions by examining them through the lens of information theory, a branch of applied mathematics that quantifies information and suggests optimal ways to transmit it. Using these concepts, this Article proposes that what makes expressive works valuable to society is that they make a contribution in at least one of two principal ways: by using that expression to communicate knowledge—be it systematic, factual, or cultural—and by conveying expression that is enjoyable in and of itself. Information theory sheds light on how copyright law can spur these valuable works.

Works that are valuable due to the knowledge they contain are typically noisily expressive. Accordingly, many of the central doctrines of copyright law promote encoding this knowledge in redundant forms so as to transcend this noise and accomplish copyright law's goals of transmitting this knowledge. In that context, this Article considers whether rights to create these redundant forms ought to lie with the first author or more broadly with the public.

For works that are valuable due to their contributions to expression, it is clearly important that the expression itself be disseminated. Frequently underpinning this sort of expression is mystery, or at least varying views, as to the expression's meaning. Different audiences—varied in context or over time—might locate miscellaneous understandings in this expression. These diverse and possibly evolving readings are intimately tied to the value of the initial expression itself. As such, these readings are valuable for society as well. In that vein, copyright law ought to encourage both this valuable expression and the ability to work it over, repurpose it, and interpret it. By doing so, copyright law can encourage that the underlying expression promote a continuing conversation. It can do so by allowing the underlying expression to be used redundantly—to attach to varying meanings and interpretations—thereby creating a unified conversation.

[Page 74]

Part I provides an overview of copyright law and theory. Part II introduces information theory. Part III then weaves information theory into copyright law. Part IV works through a number of central areas of copyright law that can (and often already do) accommodate an information theory of copyright law.

I. Copyright Law

American copyright law protects "original works of authorship fixed in any tangible medium of expression," including literary works, sound recordings, movies, and computer software code.¹ To obtain copyright protection, authors need only create a qualifying work.² Protection vests in authors without any formalities like registration.³ A copyright holder receives the exclusive right to reproduce the work, distribute copies of it, and prepare derivative works, among other things,⁴ typically until seventy years after the author's death.⁵ Copyright protection extends to the expression of particular ideas rather than to the ideas themselves.⁶ Yet protection actually reaches well beyond the literal work to works that are copied and substantially similar,⁷ "else a plagiarist would escape by immaterial variations."⁸

According to the Supreme Court, Congress, and many legal scholars, utilitarianism is the dominant purpose of American copyright law.⁹ According to utilitarian theory, copyright law provides the incentive of exclusive rights for a limited duration to authors to motivate them to create culturally valuable works.¹⁰ Without this incentive, the theory goes, authors might not invest the time, energy, and money necessary to create these works because they might

[Page 75]

be copied cheaply and easily by free riders, eliminating authors' ability to profit from their works.¹¹

Utilitarianism aligns fluently with (and is frequently justified by) the U.S. Constitution's grant of power to Congress "[t]o 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."¹² Most utilitarians understand social welfare to be maximized—in the context of copyright law—by the creation of ever more artistic works.¹³ For example, Paul Goldstein posits without further explanation that "[t]he aim of copyright law is to direct investment toward the production of abundant information" and "the widest possible variety of literary, musical and artistic expression."¹⁴ In a previous work, I suggest that, given what society values as artistic creativity, copyright law seeks to encourage works in which "an author['s] identif[ication of] subjective emotional themes or ideas [have been] transform[ed] into artistic expression."¹⁵ Both of these explanations align with copyright law's low threshold for protectability.¹⁶ Others, like William Fisher, employ a broader understanding of welfare: that intellectual property protection ought "to help foster the achievement of a just and attractive culture."¹⁷ Which sorts of works a utilitarian copyright law ought to encourage remains an unsettled issue, although many of these views overlap with one another.

Pursuant to utilitarianism, the rights conferred by copyright laws are designed to be limited in time and scope.¹⁸ The reason for providing copyright protection to creators is to encourage them to produce socially valuable works, thereby maximizing social welfare.¹⁹ If the provided rights are exceedingly

[Page 76]

extensive, society would be hurt (and social welfare diminished).²⁰ For one thing, exclusive rights in intellectual property can prevent competition in protected works, thereby allowing the...