Prof. Randal C. Picker, University of Chicago Law School
February 19, 2013

The recent tragic suicide of Aaron Swartz has again emphasized the complexities of copyright’s public domain.  The Swartz case is complex and his prosecution by the U.S. federal government for an alleged violation of federal computer law is controversial, but I want to focus here, as I do in a recent paper, on some basic issues regarding how public domain is available and the scope of the tools for restricting that access.

The government claimed that Swartz had attempted to download illegally millions of academic articles from JSTOR, a nonprofit organization that has digitized those articles and licenses them for money primarily to academic institutions.  Swartz believed that academic research, especially that in the public domain, should be widely available and that JSTOR’s licensing practices blocked that availability unnecessarily.  According to the federal government, Swartz set out on his own to remedy that.

We need to situate the public domain and can do that naturally in the framework of use rights and access rights.  These are very different creatures and the legal system deals with them quite differently.  Use rights are the domain of copyright, where copyright law sets out who can reproduce copyright works – the author – and the circumstances under which others can use those works without the permission of the author, sometimes through the slippery, elusive doctrine of fair use.  But in the main, copyright doesn’t set out access rights.  If I have the only copy of a copyrighted work, you have no right to see it, and if you break into my house to read it, you have almost certainly committed a crime, even if your quote from the work in a blog post would qualify as fair use.

U.S. copyright law doesn’t restrict the use of works in the public domain, but the patchwork access regime may do just that and those rules together define the circumstances under which content can be accessed.  These rules include normal rules controlling access to physical property, contract law, the Freedom of Information Act, and, at the heart of the Swartz prosecution, the Computer Fraud and Abuse Act (“CFAA”).  For example, works of the U.S. government enter the public domain immediately.  The White House undoubtedly creates many public domain works each day, but the public may have no right to access them and an outsider’s attempt to invade the White House’s computer network to get at those public domain documents would rightly be treated as a crime.

The fact that a work is in the public domain doesn’t create any access rights to it.  That just isn’t what copyright does.  The access rules are left to other law.  It would be easy to imagine a country choosing to make all works in the public domain available for free to the public and to finance that through general tax revenues.  I think that we would call those public libraries.  But that isn’t what we have done so far in the United States.

Digitizing works is a substantial undertaking and it isn’t surprising that the firms doing that work look for ways to cover their costs.  We should expect to see those firms restrict use in a number of ways and we can expect to see continuing clashes over those restrictions.  And the shadow control regime that makes it possible to control access to the public domain is likely to come under pressure in those circumstances, as we are seeing now with possible reforms of the CFAA on the table.