logo

Against Monopoly

defending the right to innovate

Monopoly corrupts. Absolute monopoly corrupts absolutely.





Copyright Notice: We don't think much of copyright, so you can do what you want with the content on this blog. Of course we are hungry for publicity, so we would be pleased if you avoided plagiarism and gave us credit for what we have written. We encourage you not to impose copyright restrictions on your "derivative" works, but we won't try to stop you. For the legally or statist minded, you can consider yourself subject to a Creative Commons Attribution License.


back

Copyright batte over 'unauthorized' Catcher in the Rye commentary

Jim Lindgren has an interesting post over at Volokh.com concerning the legal battle over a book that may or may not be characterized by some as an unauthorized sequel to "Catcher in the Rye".

Be sure to read it here.

This case brings up a number of issues:

First, it exposes the lie that is perpetuated in the legal community that copyright laws don't protect "ideas", but rather only the "concrete expression" of ideas. In practicality, this statement is pure nonsense as evidenced by the fact that a copyrighted work seals in monopoly protections of "characters" and "derivative works" - even if such derivative works don't include any actual "copying" of cloned material from the underlying work.

For instance, if I feel that I have a far better script or storyline that utilizes the character of James Bond, but without utilizing any previous cloned image from a Bond film and without copying previously used dialogue beyond a minimal instance of "My name is Bond...James Bond." or "Shaken...not stirred.", I still would not be able to create it, because Ian Flemming's estate and/or Sony Pictures, etc. has a monopoly over the IDEA of James Bond.

I would argue that by protecting "derivative" works, copyright effectively asserts control over ideas - except for those envisioned at the most abstract levels.

Second, this case also illustrates just how slippery (and I would argue, unsustainable) current fair use concepts are that try to differentiate between "criticism", "parody" and academic explorations of previous literary works versus competing concepts such as "satire" and unauthorized "derivative works" that may contain some vestiges of the previously mentioned fair use categories.

How will "Coming Through The Rye" be classified if it functions as both a "derivative work" of "Catcher in the Rye" as well as literary criticism and history concerning the creation of the same?

Third, this case seems to be another instance of where the judiciary throws out their usual rules regarding prior restraints against free speech when it comes to mere (unproven) allegations of IP infringement. Courts will not allow prior restraints in libel cases. They didn't even allow it in the famed Pentagon Papers case which involved allegations of breaches of national security. But when it comes to protecting IP whenever somebody shouts "copyright" - judges too often seem to ignore free speech concerns.

Eugene Volokh wrote a great law paper on this issue. I'd advise checking it out here:

http://www.law.ucla.edu/volokh/copyinj.htm

I remember once being lucky enough to come across a copy of "The Wind Done Gone" during a time when a federal judge had enjoined its publication through a temporary restraining order - essentially declaring it unlawful to own and distribute due to copyright complaints from the Margaret Mitchell estate. I purchased it, and secretly horded it away as though I was living through some twisted version of "Fahrenheit 451". I thought it might remain on the list of "banned books" in the U.S. As it turned out however, the copyright case over it was settled, and the book was eventually "allowed" to published.

Perhaps the proper solution is the same one utilized in "Fahrenheit 451". When a rebellious populous was faced with a nation of "firemen" whose job it was to burn all books, each person was given the task of committing a book to memory in order to orally recite it later to others, thus circumventing the state by placing the books in the one area it could not reach - the human mind.

On second thought, that won't work. Current copyright laws prevent the unauthorized "performance" of copyrighted works - including recitals.

Beware the current crop of "firemen" looking to set the nation's Rye fields ablaze....


Comments


Submit Comment

Blog Post

Name:

Email (optional):

Your Humanity:

Prove you are human by retyping the anti-spam code.
For example if the code is unodosthreefour,
type 1234 in the textbox below.

Anti-spam Code
TwoZeroQuatroTwo:


Post



   

Most Recent Comments

Killing people with patents AIDS is a dangerous decease. I have watched the trailer and it is heart touching. I wish no one to

Terence Kealey: This post is very helpful for my writing because I am doing the research paper work so I search

Dr. Who?

The Other Dr. No: HIV Researcher Fighting the IP Pirates Hi, First off, I came across your site and wanted to say thanks for providing a great HIV/AIDS

IIPA thinks open source equals piracy Buy college papers at http://buy-essays-now.com and make sure that they are the best

Let's See: Pallas, Pan, Patents, Persephone, Perses, Poseidon, Prometheus... Replying to Stephan: As I noted elsewhere, I'm fine with abolishing the system, just don't think

The right to rub smooth using a hardened steel tool with ridges Finally got around to looking at the comments, sorry for delay... Replying to Stephan: I'm sorry

Let's See: Pallas, Pan, Patents, Persephone, Perses, Poseidon, Prometheus... This is very useful post for the people. I want to write this types article but I do not know about

Let's See: Pallas, Pan, Patents, Persephone, Perses, Poseidon, Prometheus... Seems like a kinda bizarre proposal to me. We just need to abolish the patent system, not replace

The right to rub smooth using a hardened steel tool with ridges I'm a bit confused by this--even if "hired to invent" went away, that would just change the default

What's copywritable? Go fish in court. This post is providing very useful and informative information for the students. I like this post

Update and critique of the proposed GOOGLE settlement Hi!) Informative article about Google INC. I agree with you, that Google is a huge company, that

IIPA thinks open source equals piracy Do you suffer from loads of academic assignments? http://marvelous-essay.net will help you to

The right to rub smooth using a hardened steel tool with ridges Thanks for the information! It's good to know that there are some places showing the consequences

Do we need a law? @ Alexander Baker: So basically, if I copy parts of 'Titus Andronicus' to a webpage without

Do we need a law? The issue is whether the crime is punished not who punishes it. If somebody robs our house we do

Do we need a law? 1. Plagiarism most certainly is illegal, it is called "copyright infringement". One very famous

IIPA thinks open source equals piracy Good post. Thanks for this information. By the way, if students want to get rid of their

Yet another proof of the inutility of copyright. The 9/11 Commission report cost $15,000,000 to produce, not counting the salaries of the authors.

WKRP In Cincinnati - Requiem For A Masterpiece P.S. The link to Amazon's WKRP product page: