Has Sense Flown the Coop?

Last Tuesday, Jarret A. Zafran ’09 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 Coop’s policy is to “discourage people who are taking down a lot of notes” because textbook information is “the Coop’s intellectual property.” The Crimson has also quoted Murphy as saying: “We’ve gone to the trouble of collecting the intellectual property of the book lists [from the professors]... [a]nd we wanted to make sure that we’re not going to—my words—shoot ourselves in the foot in terms of how we give that information out. That’s a valuable asset to us.”

We’re not sure what “intellectual property” right the Coop has in mind, but it’s 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 America’s mass litigation campaign the catch-phrase—and the law—has its limits.

Since the Coop’s managers don’t seem to have read the law books on their shelves, we’d 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 doesn’t stop them from noting what books are on the shelf and how much they cost.

The Supreme Court tells us that “[t]he sine qua non of copyright is originality.” That’s 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 doesn’t protect the “sweat of the brow” involved in compiling facts, either: “[C]opyright rewards originality, not effort.” Nor does it give monopoly control of minimally expressive statements (for example, a book’s price) that “merge” with the underlying idea (for example, its market value). A federal appeals court recently denied the New York Mercantile Exchange’s bid to protect its list of stock prices, saying that “the market is an empirical reality, an economic fact about the world.”

Locking competitors out from price comparison is not part of copyright’s aim. While some courts have protected the creativity of price estimates, they haven’t 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 copyright’s 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 “promote the progress of science,” 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 authors’ 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 Coop’s managers might want to come up with a better reason than “intellectual property” 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 students’ access to information.

John G. Palfrey, Jr. ‘94 is executive director of the Berkman Center for Internet and Society. Wendy M. Seltzer ‘96 is a Fellow with the Berkman Center. Angela Kang is a second-year law student at Harvard Law School.