[Infowarrior] - Harvard lawyers slam the Harvard Coop

[Richard Forno]

 Has Sense Flown the Coop?

Published On Wednesday, September 26, 2007  2:07 AM
By ANGELA KANG, JOHN G. PALFREY, JR., and WENDY M. SELTZER

John G. Palfrey, Jr. Œ94 is executive director of the Berkman Center for
Internet and Society. Wendy M. Seltzer Œ96 is a Fellow with the Berkman
Center. Angela Kang is a second-year law student at Harvard Law School.

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Last Tuesday, Jarret A. Zafran ¹09 was reportedly asked to leave the Harvard
Coop after recording the prices of six books required for his social studies
junior tutorial. His story is not unique. Other bargain-hunting students
have reported similar experiences. Most notably, on Thursday, the Coop
called Cambridge police on ISBN-copying students gathering data for
CrimsonReading.org, but the police refused to take action.

Coop President Jerry P. Murphy told the Crimson that the Coop¹s policy is to
³discourage people who are taking down a lot of notes² because textbook
information is ³the Coop¹s intellectual property.² The Crimson has also
quoted Murphy as saying: ³We¹ve gone to the trouble of collecting the
intellectual property of the book lists [from the professors]... [a]nd we
wanted to make sure that we¹re not going to‹my words‹shoot ourselves in the
foot in terms of how we give that information out. That¹s a valuable asset
to us.²

We¹re not sure what ³intellectual property² right the Coop has in mind, but
it¹s none that we recognize. Nor is it one that promotes the progress of
science and useful arts, as copyright is intended to do. While intellectual
property may have become the fashionable threat of late, even in the wake of
the Recording Industry Association of America¹s mass litigation campaign the
catch-phrase‹and the law‹has its limits.

Since the Coop¹s managers don¹t seem to have read the law books on their
shelves, we¹d like to offer them a little Copyright 101.

Copyright law protects original works of authorship‹the texts and images in
those books on the shelves‹but not facts or ideas. So while copyright law
might prohibit students from dropping by with scanners, it doesn¹t stop them
from noting what books are on the shelf and how much they cost.

The Supreme Court tells us that ³[t]he sine qua non of copyright is
originality.² That¹s why the compilers of a white-pages telephone directory
lost their claims against a competitor who copied listings. The Coop neither
authored the ISBN numbers on its books nor compiled them in an original
selection or arrangement. From all accounts, the professors who create
course reading lists are happy for students to have them. (Professors
generally welcome anything that helps students to do their course
assignments.)

What about the prices that the Coop set and affixed to books? Copyright
doesn¹t protect the ³sweat of the brow² involved in compiling facts, either:
³[C]opyright rewards originality, not effort.² Nor does it give monopoly
control of minimally expressive statements (for example, a book¹s price)
that ³merge² with the underlying idea (for example, its market value). A
federal appeals court recently denied the New York Mercantile Exchange¹s bid
to protect its list of stock prices, saying that ³the market is an empirical
reality, an economic fact about the world.²

Locking competitors out from price comparison is not part of copyright¹s
aim. While some courts have protected the creativity of price estimates,
they haven¹t allowed companies to exclude others from learning market prices
or catalog part numbers. CrimsonReading.org, which offers price comparisons
built around the book lists gathered from professors and the Coop, furthers
copyright¹s goals of sharing access to information.

Here, at least, the copyright law follows our intuitions. Access to ideas is
a high priority in a democratic society. The Constitutional authorization to
³promote the progress of science,² leaves facts in the public domain, as do
the statutes and cases interpreting them. Authors are given copyright
incentives to induce them to share their works and the ideas in them with
the public. We would expect an academic bookstore to appreciate that it too
gains from authors¹ free access to the facts and ideas in the world around
them.

We recognize that the Coop can kick anyone they want out of its
store‹although even the Cambridge police seemed to think the Coop was taking
things a bit too far. If they call again, the Coop¹s managers might want to
come up with a better reason than ³intellectual property² or risk marring
the intellectual face of Harvard. And Harvard might want to re-think its
relationship with an institution that seems to put its own profit margin
ahead of its students¹ access to information.