Part 0: Crass Introductory Remarks
One would think that the judiciary was capable of learning from the past, especially when implored to avoid a particular class of errors by a giant (however flawed, and however later passed by) of the past. One would probably be wrong, as evidenced by the judiciary's — hell, the entire profession of law's — failure to acknowledge an observation by Oliver Wendell Holmes, Jr. more than a century ago, cautioning the judiciary (and the law!) against the Dunning-Kruger effect1 regarding the arts:
It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value — it would be bold to say that they have not an aesthetic and educational value — and the taste of any public is not to be treated with contempt. It is an ultimate fact for the moment, whatever may be our hopes for a change. That these pictures had their worth and their success is sufficiently shown by the desire to reproduce them without regard to the plaintiffs' rights. We are of opinion that there was evidence that the plaintiffs have rights entitled to the protection of the law.2
And even here — in recognizing the profession's fallibility in judging the product of artistic endeavor — Holmes fails to acknowledge the profession's utter ignorance regarding process, which is particularly ironic given Manet as an example. Holmes can hardly be blamed for neglecting the interplay between the First Amendment and the arts, which is admittedly an aspect of law entirely ignored in US jurisprudence for another quarter of a century thereafter; more-recent practitioners, however, don't have that excuse.
I do not pretend to omniscience on these matters, especially the farther one gets from my own experiences in studying and creating both artistic works and artistic processes (which are two entirely different classes). But I'm at least aware of the limitations and differences and problems with post hoc rationalizations that seem to have escaped both the artists/creators and the legal profession.3 That is, I think I've got the minimal humility necessary for daily function in and around the arts — which cannot be said for certain judges and treatise authors… Over the next few months, I'll be irregularly posting some more-detailed musings on six egregious errors in copyright doctrine that result directly from the failure to distinguish between "process" and "thing," and how those errors relate to identifying "the" author of a work. Sadly, each of these errors was not only preventable, but predictable.
What I've found most frustrating over the years — especially when dealing with "Information Wants to Be Free" (IWTBF) advocates and virtually every tech entrepreneuer or groupie — is that understanding process as an integral element of the arts is also necessary to understanding both the expression (and information!) in the arts and virtually everything about these six problems. It is not sufficient; it is merely necessary.
- See generally, e.g., Justin Kruger & David Dunning, Unskilled and Unaware of It: How Difficulties in Recognizing One's Own Incompetence Lead to Inflated Self-Assessments, 77 J. Personality & Soc. Psych. 1121 (1999) abstract, text behind paywall. The less said about the judicially imposed Dunning-Kruger effect concerning jury verdicts, the better… although the probability that there's at least one member of a jury familiar with artistic process is greater than that among the lawyers and judges who tried the case.
author's note on citation format In a not-so-subtle rebellion against the Bluebook and in recognition of legally enforceable rights in at least part of the arts community, I am adopting use of the ampersand ("&") to connect authors who each worked on an integrated whole, and the simple conjunctive ("and") for editors or other sources of collective works who contributed to a whole but not individual discrete elements. Plus it will screw up some less-sophisticated web crawlers that have trouble with operator overloading of the ampersand in HTML.
- Bleistein v. Donaldson Litho. Co., 188 U.S. 239, 251–52 (1903) (citation omitted).
- For an introduction to the endowment effect in general, see Daniel Kahneman, Jack L. Knetsch, & Richard H. Thaler, Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias, 5 J. Econ. Perspectives 193 (1991) PDF.
As these musings progress, the "it's mine" problem will become more and more central, as will the different varieties of "ownership" at issue in the arts — particularly when they overlap but the decisional frame being used favors, and perhaps even considers, only one of the varieties. Cf. David P. Stern/NASA, (22) Frames of Reference: The Basics, From Stargazers to Starships (2006, retrieved 2018). (This reference to basic physics and basic reasoning is an intentional self-referential smack at the limited educational background of the legal profession, cf. note 1 supra.)