Date: Tue, 26 Nov 1996 12:08:11 -0500

From: David Dailey <>

To: Multiple recipients of list <>

Subject: behavioral by-products

While in the midst of contemplating new categories of IP, why not advance others?

Databases, software, look and feel, and thin-copyrights (maybe my WWW-accessible scans of some of Merriam-Webster's wonderful old PD engravings might give me a small stipend -- enough to rent videos in perpetuity and throughout the universe?) are all things that those involved in pursuit of these activities might have cause to feel under-rewarded by extant economic structures.

How about behavioral side-effects: things that humans produce, relatively unintentionally? Many of these fixed-in-tangible-medium-expressions burble forth serendipitously along the paths we as individuals carve through our molecular worlds.

I do not know of caselaw which addresses the intentions or lack thereof of the creator, but the statutory definition seems not to require that the fixation in a tangible medium is done "on purpose."

So maybe these things are already covered by copyright law and we don't have to invent a new category of legalism to protect them.

I'm thinking of such things as footprints, fingerprints, skidmarks, phone bills, credit histories, grocery store receipts, census and other records, and brainwaves.

Footprints: a famous dancer executes a brilliant two minute, self-choreographed sequence of steps. A custodian, before cleaning the floor, photographs the footprints left behind, and is able, through some very clever analysis, to reconstruct the unique sequence of steps which would have produced these prints. The custodian then markets a how-to-dance videotape based directly on the sequence.

Alternatively, a famous sports figure leaves a sequence of bloody footprints at a crime scene and alleges copyright infringement when law enforcement investigators attempt to reconstruct the movements that led to these prints. One might argue that the footprints are purely functional -- the only way to make that sequence of steps involves precisely those footprints -- hence unprotectable. On the other hand, choreographic works, once fixed, are included in the statutes as copyrightable.

Fixation apparently (by the copyright office's description) includes notations such as Labanotation. To the extent that a notation records a performance in a way that it can be reproduced, then the choreographic work has been fixed, in the same way that writing text fixes a story. Footprints, in these cases, would serve the same role as notation.

Fingerprints and skidmarks: These are fixed in a tangible medium. The question of copyright hinges on separability of form and function and on originality. Given the circumstances leading up to the skidmark (road conditions, the speed, direction and angular acceleration of the vehicle) the skidmark might be viewed as having no expressive role.

Alternatively, for a race-car driver renowned for creative braking, the skidmark may provide the notation of the braking-dance. A single fingerprint... well it serves as testimony to an individual's unique encounter with the molecular world at some point in time. From the point of view of the creator of the fingerprint, it has no function, though it clearly has form. If a tangible expression has no function can merger be argued?

Phonebills. The sequence of long-distance calls I make says a lot about my social life. If my social life were my livelihood, as I suppose may be the case for certain celebrities, then this particular record fixes a part of my creativity. Generally, we assume that these records are private, perhaps some laws governing common carriers require the carriers to keep these records private. In any case, we would probably be disturbed to discover that our long distance carrier were selling the data. The question of ownership of these records would appear to boil down to implied license. I have implicitly licensed the phone company to keep records for the purpose of billing. They have recorded my performance with my consent. As the artist, however, I could claim that the implied license extends no further than that.

Credit history and grocery lists. As with sequences of long distance calls, the sequence of purchases I make can be viewed as expressive. Each time I fill a grocery basket, many artistic decisions about the pleasantness of juxtaposing artichokes and sesame seed oil and the 58 other products in the basket are made. I have constructed a 60 word poem (with largely irrelevant syntax) from a vocabulary consisting of the 10,000 products contained on the shelves of the store. Again, for the sake of billing, I have licensed the grocery store to produce a record of this transaction. May I publish my receipts? May they? Is copyright involved? Privacy laws are apparently nonexistent for this sort of thing, though many consumer groups would bemoan that situation, as credit and purchase data are routinely sold somewhat promiscuously. For my purposes as a culinary artist, the grocery store is merely my typewriter, and as a shopper-extraordinaire, the credit card company is my paintbrush.

A similar circumstance arises in the use of certain mainframe-based (and microcomputer-based) word-processors, the entire edit-history of my authoring has been stored in a file: text, cursor movements, deletion, insertions, etc. The software uses this to construct the text in the manner I wish it to appear. These ephemera are incidental to the work I produce in the same way that the dancer's footprints are. Yet from both, the work itself can plausibly be reconstructed.

Census forms and other questionnaires. A template or format is provided to me by a situation/agency, and I fill in the blanks (I avoid the temptation to compare this to legal briefs). My particular choice of words and answers involves choices and the resulting sequence is the completed form. Can I not claim authorship and, hence, control, to the extent of some implied license, the degree of dissemination that my work receives?

Brainwaves: The prospect of identifying semantic/cognitive substance from neural activity is nowadays not so far-fetched. If progress in recording, mapping, and decoding neural activity reaches its natural end, then ideation and fixation become one. To what extent does the owner of the device have any rights to the records, when those records could be used to reconstruct the thought? How does merger work if there is no way to think those thoughts without producing just the observed pattern of neural activity?

In the cases of shopping habits, computing edit histories, brainwaves, and questionnaire responses, authorship is somewhat collaborative. I interact with a system (company, agency or computer) and with the use of that system produce a work. Certain sorts of systems such as pencils and word-processors are clearly tools for expression, others, like grocery stores and neural analyzers seem somehow to be different.

The notion that incremental adjustments to international IP law will be able to keep up with technology seems over-optimistic. IP seems to concern itself with collisions between molecular and intellectual reality: where thought or behavior intersects "the tangible medium."

A form of the classic "mind-body" problem is inherently embedded in this realm of collision. As the technologies of artificial intelligence, neuroscience, and consumer behavior continue to advance, then the separation between idea and expression will continue to blur.

Some curious possibilities for future legislation may lie ahead.

David Dailey (

A collection of random postings to cni-copyright during the years 1994-. Humor and dread.