2. Dina Mackney got appointed administrator of Chris Mackney’s estate, presumably because his heirs are their underage children, and she is the guardian of the children. (I’m not a probate law expert, so I can’t speak to the soundness of this decision by a Virginia judge, applying Virginia law, but I will assume for the rest of the post that this appointment was legally valid.)
3. Dina Mackney then demanded that various sites take down Chris’s various writings, including his suicide note, on the grounds that she represents Chris’s estate, which owns the copyright in those writings.
Why the copyright twist? Dina might have plausible claims that Chris’s writings are libelous, or invade her or the children’s privacy, but given the federal 47 U.S.C. § 230 statute, Web sites that host user-posted writings are not liable for any defamation or invasions of privacy in those writings. (Chris would have been liable for them, and Chris’s estate might still be liable, but the sites would not be.) But under federal copyright law, the sites that host user-posted writings are potentially liable for copyright infringement in those writings. Taking control of the copyrights thus makes it much likelier that the hosting sites will indeed take down Chris’s works.
Note also that pretty much anything written down is presumptively protected by copyright; it doesn’t matter, for instance, that Chris’s works didn’t have a copyright notice on them, or weren’t registered at the time they were written.
4. Some sites, however, are refusing to take down the materials, arguing — soundly, I think — that their continued posting of the material is not a copyright infringement. (See Marc Randazza’s letter on behalf of the A Voice for Men site.) The main arguments are (a) fair use and (b) implied license.
a. The fair use argument, I think, is quite strong. The sites that are continuing to host Chris’s works aren’t deriving any material commercial advantage from them, and their continued hosting isn’t diminishing the commercial value of the works (which is nil). Moreover, Chris voluntarily published the works; these aren’t personal letters that were deliberately unpublished. As a result, I think the balance of the fair use factors is likely to cut in favor of the fair use (even though the site operators’ use is nontransformative, and reproduces the entirety of Chris’s work).
The strongest precedent for Dina would be Worldwide Church of God v. Philadelphia Church of God (9th Cir. 2000), which also involved the suppression of a dead author’s work by successors who didn’t endorse the work’s message. Herbert Armstrong had founded the Worldwide Church of God, and had written “Mystery of the Ages” (MOA) (some paragraph breaks added):
Armstrong wrote MOA, his final work, between 1984 and 1985. He completed it when he was ninety-two years old, shortly before his death. He copyrighted it in the name of WCG and published it in serial form in The Plain Truth magazine, distributed free of charge to approximately eight million people. In addition, WCG distributed over 1.24 million copies free of charge to employees and to viewers of WCG telecasts. In all, WCG put over nine million free copies of MOA into circulation.Two years after Armstrong’s death, WCG decided to discontinue distribution of MOA for several reasons, including the fact that the Church’s positions on various doctrines such as divorce, remarriage, and divine healing had changed. The Church hoped to “prevent a transgression of conscience by proclaiming what the Church considered to be ecclesiastical error” espoused in MOA and it considered that Armstrong, who was ninety-two when he wrote MOA, conveyed outdated views that were racist in nature. Its Advisory Council of Elders indicated that the Church stopped distributing MOA because of “cultural standards of social sensitivity” and to avoid racial conflict. The Council noted, “Insensitivity in this area is contrary to the doctrinal program of WCG to promote racial healing and reconciliation among the races.”WCG disposed of excess inventory copies of MOA and stopped distribution, but retained archival and research copies. WCG never sought to withdraw or destroy personal copies or copies held by public institutions or any public library, nor did it request that its members destroy their copies. WCG has indicated an interest in publishing an annotated MOA sometime in the future but has not yet begun work on it.
The Philadelphia Church of God sought to reprint MOA, but Worldwide Church of God — as the heir of Armstrong’s copyright — sued to stop that, and the Ninth Circuit agreed.:
The first factor calls for consideration of “the purposes and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” “The central purpose of this investigation is to see, in Justice Story’s words, whether the new work merely ‘supersede[s] the objects’ of the original creation [citations omitted] or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is `transformative.'” … PCG’s copying of WCG’s MOA in its entirety bespeaks no “intellectual labor and judgment.” It merely “supersedes the object” of the original MOA, to serve religious practice and education. Although “transformative use is not absolutely necessary for a finding of fair use,” where the “use is for the same intrinsic purpose as [the copyright holder’s] . . . such use seriously weakens a claimed fair use.” …[Moreover,] MOA’s use unquestionably profits PCG by providing it at no cost with the core text essential to its members’ religious observance, by attracting through distribution of MOA new members who tithe ten percent of their income to PCG, and by enabling the ministry’s growth. During the time of PCG’s production and distribution of copies of MOA its membership grew to some seven thousand members….The second statutory factor, “the nature of the copyrighted work,” turns on whether the work is informational or creative. While it may be viewed as “factual” by readers who share Armstrong’s religious beliefs, the creativity, imagination and originality embodied in MOA tilt the scale against fair use….The third factor directs us to consider “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” PCG copied the entire MOA verbatim …. [In the Sony case,] the Supreme Court held that reproduction of the entire work “[did] not have its ordinary effect of militating against a finding of fair use” under the unique circumstances of that case, to wit: copying of videotapes for time-shifting for personal use to “enable[ ] a viewer to see such a work which he had been invited to witness in its entirety free of charge.” No such circumstances exist here to justify PCG’s reproduction of the entire work….The fourth factor considers “the effect of the use upon the potential market for or value of the copyrighted work.” … [I]t cannot be inferred from that fact that the absence of a conventional market for a work, the copyright to which is held by a nonprofit, effectively deprives the holder of copyright protection…. The statute by its terms is not limited to market effect but includes also “the effect of the use on the value of the copyrighted work.” … “[E]ven copying for noncommercial purposes may impair the copyright holder’s ability to obtain the rewards that Congress intended him to have.” Those rewards need not be limited to monetary rewards; compensation may take a variety of formsWCG points out that those who respond to PCG’s ads are the same people who would be interested in WCG’s planned annotated version or any future republication of the original version. With an annotated MOA, WCG hopes to reach out to those familiar with Armstrong’s teachings and those in the broader Christian community. PCG’s distribution of its unauthorized version of MOA thus harms WCG’s goodwill by diverting potential members and contributions from WCG…. [U]ndisputed evidence shows that individuals who received copies of MOA from PCG are present or could be potential adherents of WCG. MOA’s value is as a marketing device; that is how PCG uses it and both PCG and WCG are engaged in evangelizing in the Christian community.PCG argues that WCG’s failure to exploit MOA for ten years and its lack of a concrete plan to publish a new version show that “MOA has no economic value to the WCG that the PCG’s dissemination of the work would adversely affect.” We disagree. Even an author who had disavowed any intention to publish his work during his lifetime was entitled to protection of his copyright, first, because the relevant consideration was the “potential market” and, second, because he has the right to change his mind….
I’m not sure the Ninth Circuit was correct here; but in any case, I think that, to the extent the Ninth Circuit’s position is defensible, it relies substantially on the commercial value of the work, both to the copier (there, PCG, which used the work to attract adherents and their tithes) and to the copyright owner (there, WCG, which at least plausibly claimed that it might at some point reissue an annotated version of the work and sell it). I don’t think this argument would prevail for commercially valueless works such as Chris’s suicide note and other writings, or for fundamentally noncommercial uses such as the host sites’ continued posting of those works.
c. More broadly, even sites to which Chris didn’t post the items, but which are reposting them in order to keep the items available in the face of Dina’s attempts to get them taken down, might well be able to claim implied license. When someone writes and posts something that a reasonable person would perceive as an attempt to get the widest possible audience for his message, I think a reasonable person could properly assume that the author is allowing others to copy it in a way that maximizes that audience. (Even if I’m mistaken on this implied license point, of course, such mirror sites would still be able to claim fair use, which is one reason I started the discussion with the fair use defense.)