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.


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:


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....


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