With the exception of the IP Mafia and its supporters/enablers, just about everyone recognizes that folks sometimes use copyright as an anticompetitive tool or tool for intimidation rather than to “promote the Progress of Science and useful Arts” by ensuring creators get compensated. While we can argue about how often this occurs or how much it genuinely chills free speech, you occasionally run into a case of copyright abuse so utterly blatant that it cries out for legal action — or at the very least a healthy dose of ridicule.
So, as a loyal Princeton alum (Go
Tigers!), it gives me great pleasure to hold up for public opprobrium, general mockery, and possible legislative organizing the ridiculous claim by the Harvard University Bookstore, aka the Harvard Coop. As reported by the Harvard Crimson (Official motto: “No, we do not tell you where in the YaRd you can PaRk your damn caR”), the Harvard Coop claims it can eject students that write down the prices and ISBN numbers of text books. Why? According to Harvard Coop President Jerry P Murphy, “the Coop considers that information the Coop's intellectual property.”
The Coop denies, of course, that it is trying to make it harder for students to use online services such as Crimsonreading.org to find cheaper textbooks. No doubt Mr. Murphy sincerely believes that if you allow students to copy publicly displayed prices and ISBN numbers, it will just be the poor text book authors and text book publishers that suffer. And if the Harvard Coop doesn't stick up for helpless textbook authors and publishers, the entire textbook industry will go bankrupt, our system of secondary education will fail, America will lose its global competitiveness, and the terrorists will win. This is, after all, why copyright infringement is worse than child pornography. I'm sure Mitch Bainwol and Marybeth Peters will back Murphy up on this.
Indeed, any accusation that the Harvard Coop could be using the vague threat of some sort of copyright interest for anticompetitive purposes is not merely absurd, it's downright insulting! After all, it's not like an independent government report found that textbook prices rose at twice the rate of inflation or that consumer protection organizations have campaigned to stop textbook price gouging. Oh wait….Well, I'm sure that's just one of those nasty coincidences that encourages pirates like Harvard students (yes, all of them) to pretend that there is some sort of “competition” or “free speech” issue at stake here.
In fairness, of course, The Harvard Coop has not explicitly said “copyright” but merely “intellectual property.” So rather than pretending they have a copyright interest in a mere list of numbers — which would be a rather “Feisty” claim (we lawyers are just SUCH the punsters) — the Coop may be making some other vague intellectual property claim. Perhaps they hold a business method patent on “a method for comparative shopping via the transcription of price information and ISBN numbers.” Hell, if a five-year old can get a patent for swinging sideways, no reason a bookstore can't get a patent on a method to shut down comparative shopping.
But that, of course, is the beauty of such a vague claim like “The Coop considers this information the Coop's intellectual property.” Like “in the interests of national security,” the very vagueness of the claim makes it harder to disprove and therefore all the more intimidating. So even a student who has dropped by the Berkman Center or soaked up the wisdom of visiting professor Pam Samuelson and therefore recognizes that a copyright claim is bogus may wonder if some other “intellectual property” claim — perhaps some sort of state-based trade secret claim? — has enough traction to land one in court.
Still, as a Princeton alumn (Official slogan: “Did you know Ed Felten teaches here? We rock!”) I feel a certain moral obligation to offer a better approach than that offered by Mr. Murphy (Harvard class of '73) and the Harvard Coop. Rather than pass legislation to require colleges and universities to crack down on students, I propose a different approach I first suggested almost a year ago in the wake of EFF's successful lawsuit giving Barney a 'time out' for copyright harassment. Under my proposed “Anti-IP Troll Free Speech Protection And Competition Enhancement Act,” Congress would give people a right to gain both injunctive relief and statutory penalties when harassed with frivolous intellectual property claims.
Because as this most recent example of “Murphy's Law at the Harvard Coop” demonstrates, it has become just all too easy to make vague claims about “intellectual property” to justify all manner of harassment. And unless we provide some possible consequences for abusing people with bogus intellectual copyright claims, people and businesses that want to suppress speech or hinder competition will keep doing it. Why not? Because other than the risk of a little ridicule on a few blogs, Mr. Murphy and the Harvard Coop have nothing to lose and everything to gain from bullying their customers in this fashion. Unless, of course, some of those poor students at Harvard can make the cut and transfer out to Princeton.