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Against Monopoly

defending the right to innovate

Monopoly corrupts. Absolute monopoly corrupts absolutely.





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More on the debate over the J.D. Sallinger "Catcher In the Rye" unauthorized sequel.

The full text of the judge's opinion granting a preliminary injunction against the "unauthorized" 'sequel' to Catcher In The Rye (effectively banning its publication in the U.S. even though it can reportedly be found in Europe) can be read in PDF format HERE.

I still don't see how you can square the decision with the NY Times v. U.S. case which sets a remarkably high barrier to overcome a prior restraint of free speech.

[That case can be read HERE.]

Keep in mind, this wasn't a trial on the merits. This was a decision to enjoin the book and ban its publication PENDING a trial on the merits when fair use/parody defenses can be more fully fleshed out.

Some may argue that the NY Times case can be distinguished because it was the government that wanted to ban the speech in question - not a private author. But this distinction doesn't fly in my opinion. Courts have still been very hesitant to enjoin speech in libel, obscenity and even national security contexts. The plaintiffs in libel cases are often private citizens - not government figures. Why the courts choose to ignore their own dictates on the unconstitutionality of prior restraints in the context of IP cases is beyond me.

As Professor Volokh OBSERVES, cases like this force judges to become "literary critics" and make decisions about the law based on their personal aesthetic judgments.

Absolutely insane, and an utter disgrace to the very concept of law....


Comments

"Courts have still been very hesitant to enjoin speech in libel, obscenity and even national security contexts. The plaintiffs in libel cases are often private citizens - not government figures. Why the courts choose to ignore their own dictates on the unconstitutionality of prior restraints in the context of IP cases is beyond me."

That's funny. It's not beyond me at all. The plaintiffs in libel and obscenity cases tend to be private individuals, and in national security cases the government. The plaintiffs in IP cases, on the contrary, tend to be big businesses -- record labels, book publishers, movie studios, and so forth. Big business has bought the US government, the US courts, and state governments.


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