Research Matters: Randy Picker on "Access and the Public Domain"

Research Matters is a biweekly feature in which a member of the faculty talks about some of his or her latest work and its impact and relevance to law and society.

Randy Picker, James Parker Hall Distinguished Service Professor of Law, is the author of “Access and the Public Domain,” published recently in the San Diego Law Review (but you can find an online version here from the Coase-Sandor Institute for Law and Economics). The paper explores the meaning of public domain in the Internet era, and the ways in which works classified as such can be accessed and restricted. Picker pays special attention to emerging digital libraries, such as Google Book Search, which force the law to adapt to a new reality of information storage, access, and use.

Q. How did this research come to be?

RP: I wrote a paper a few years ago on razors and blades, (The Razors-and-Blades Myth(s)), and I wanted to include an advertisement from the 1904 New York Times. The 1904 New York Times is clearly in the public domain, there’s no question about that. But ProQuest Historical Newspapers, which digitized the image, said that, when they scanned it, that’s like taking a photograph of the image, and they seem to think that they have a copyright in the digital scan. I don’t think that that is right and no copyright person I have talked to about it agrees with ProQuest. To get a copyright in something, there has to be a spark of originality. And when all you’ve done is basically made this slavish copy of the New York Times, you haven’t done anything original, so you shouldn’t get a copyright. That wasn’t ProQuest’s position, so our librarians at D’Angelo (Law Library) went and found a physical copy of the 1904 New York Times and scanned it. That turns out to be something of a chore, as libraries are abandoning paper copies of many old works. That caused me to think, libraries are dropping paper and doing all these scans – who gets to control them and why? And that’s what this paper is about. And that’s a big issue because we’re rolling out digital libraries, and the question is, how do you get access to this material, and who gets to set the terms of access? The emergence of this new class of libraries is a dramatic point in the way in which we manage our cultural information, and so this is in part about the future of libraries themselves.

Q. What can be better understood by this research?

RP: The way in which people are actually able to get access to material, that’s a live issue right now. Look at the Aaron Swartz case, where the federal government was prosecuting a twentysomething activist who had used his computer skills to basically try to hack into JSTOR. Swartz committed suicide and what had been a quiet case about digital libraries and the public domain became front-page news. All of that is about these questions of, what are the access rights the public should have, and what are the terms and conditions under which people should be able to access these ideas? The Internet makes all this much more transparent. Before, the limitations were more hidden, when these things were buried in obscure libraries. Now it’s online and it’s clear that some people are being let in and others are not.

Q: What did you learn personally, and what’s next?

RP: I talk about a statute in the paper, the Computer Fraud and Abuse Act, which I had never encountered before, which is now, because of the Aaron Swartz case, getting a lot of attention. Then you’ve got a draft bill on cybersecurity floating around the House of Representatives. The whole issue of cybersecurity is a timely issue, and there’s this fear that foreign governments are effectively going to have the power to disrupt American infrastructure. The way in which computers can be abused and the extent to which governments can and should seek to control that, that’s going to be an interesting issue over the next five years. This project started from my prior work on razors and blades, and yet I end up at the CFAA, digital activism, and cybersecurity. That wasn’t where I started this project, but this project bumped into that. That’s a new set of issues for me, and definitely a set of issues worth thinking about.

Watch a video of Prof. Picker presenting this paper: