Comments on: Literary Legacies Hostage to Heirs

By: madisonian.net » Privacy via IP Claims?

madisonian.net » Privacy via IP Claims? — Tue, 26 Sep 2006 22:06:20 +0000

[...] Most scholarship on the privacy/copyright divide has focused on copyright’s threats to privacy (via intrusive DRM techniques). However, as mentioned here, copyright has also been used as a club against unauthorized “peaks” at, say, a novelist’s letters (personal life committed to words). Perhaps a conception of student writing as juvenilia might lead to similar resistance of these databases. [...]

By: madisonian.net » Would Google Go Out of Business Without Fair Use?

madisonian.net » Would Google Go Out of Business Without Fair Use? — Mon, 07 Aug 2006 23:28:01 +0000

[...] As Litman says in the article, that’s a “silly” argument. But it does raise a larger question in copyright–whether the law really *ought* to protect, say, ramblings or racy photos as much as other works. Distinctions may not be administrable–and as I’ve suggested earlier, a “classic” work may be rightfully given *less* protection simply because of its “classic” status (in order to enhance access to it). But copyright policymakers ought to consider the “uniformity costs” of any legal regime here. Trackback URL: http://madisonian.net/archives/2006/08/07/would-google-go-out-of-business-without-fair-use/trackback/ [...]

By: Frank Pasquale

Frank Pasquale — Thu, 03 Aug 2006 18:51:51 +0000

By the way, there are some interesting reflections on which works are “treasured” enough to justify open access to them in Joseph Sax’s book, Playing Darts with Rembrandt. here is a review:

http://onthecommons.org/node/657/print

By: geoff manne

geoff manne — Thu, 15 Jun 2006 22:25:30 +0000

There are several problems here. Chiefly, of course, is the one you allude to: Who is going to decide which works don’t merit full copyright protection, and by what criteria will they decide, and when will they do so? Is the cost really worth the benefit? How often do “cultural artifacts” end up being withheld from public use? And to the extent that they command a higher price (I’m sure even Stephen Joyce has his price), can you be sure the higher price wouldn’t be considerably less than the price (monetary and otherwise) of administering a government-run, cultural control apparatus? Finally, my answer to your question about important works becoming ideas in themselves is “so what?” Why should the presumption be that, for special works (identified as such by a court — or perhaps congress? blech!) where lots of copying may be required “to make one’s point, or one’s project,” the secondary project should have precedence over the original work? It’s surely a strage way to reward cultural success. But it isn’t a necessary result, either. Instead, why not require the users to pay to make use of Joyce’s work, remain within fair use limits, or forebear? He (and even his irrational heirs) have an incentive to license the works. The reality is, situations like the one here are the exception; there’s just no basis for imposing a compulsory license regime here to plug up some essentially-non-existent holes.

On your follow-up question: If what you are suggesting is that the purported federal limitation on a copyright holder’s ability to alienate copyrights to whomever she pleases, regardless of the existence of “blood heirs,” is utterly idiotic, then I agree wholeheartedly!

By: Frank Pasquale

Frank Pasquale — Thu, 15 Jun 2006 12:55:58 +0000

Here’s an interesting story on Steinbeck’s copyrights:

http://www.npr.org/templates/story/story.php?storyId=5487458

Perhaps Geoff and I can agree that alienability rights should at least be clear enough to avoid disputes like this!

By: Frank

Frank — Wed, 14 Jun 2006 14:47:41 +0000

Yes, I agree that it’s hard to pull apart the more and less defensible ownership rights…the “bundle of sticks” is often more inextricably intertwined than one would like!

And I will concede that perfectly fair and reasonable property rules can generate bizarre outcomes.

All that I want to advance here is the idea that when it comes to the famous novels, like Ulysses, a compulsory license may well be appropriate. (At a rate set at some very low level, like what ultimately happened in one of the “quilt in the background of the movie” cases.)

Following Jed Rubenfeld in his Freedom of Imagination, I think a creation like Ulysses exercises enormous influence over our imaginative lives. Something that important shouldn’t be hostage to a random heir’s whims.

Perhaps it is difficult to determine what aspects of cultural heritage are important enough to merit such treatment. But courts seem to handle genericide doctrine (another example of “extraordinary success” leading to the loss of an IP right). And we seem to be willing to treat famous trademarks differently in dilution inquiries (i.e., the federal law only covers those).

One more angle: perhaps at some point a text becomes important enough that the whole thing amounts to an “idea.” For example, one might need to quote three whole pages of Ulysses to make one’s point…or intersperse the whole thing into some online critical resource. It’s not good enough to just paraphrase. Rather, (large chunks of) the entire, actual text may be necessary to make one’s point, or one’s project.

By: geoff manne

geoff manne — Tue, 13 Jun 2006 16:29:51 +0000

You write:

But isn’t it bizarre that the mercurial and temperamental SJJ has such influence over Joyce studies? I can’t understand why any public policy should permit such a person to unilaterally veto uses of passages from Ulysses. One more example of the “uniformity costs” of copyright, I guess; private letters and public novels are subject to (roughly) the same arbitrary ownership rules.

I don’t see what’s so bizarre. Would you prefer copyright in non-private works be non-transferable? Should Joyce not have the ability to transfer what may have been the vast bulk of his wealth to his children? Should he have been forced to sell while alive and transfer only cash? And would that really be a less-arbitrary ownership rule? I guess, perhaps, you think that original authors exercise their ownership interests in a relatively defensible fashion, but anyone to whom the original owner decides to assign ownership may exercise control that is less . . . defensible? economically-sensible? ethical? moral? what?

Regardless, it’s not at all clear to me that the more-defensible ownership interests exercised by authors can be separated from those of their heirs or other assignees. To the extent that copyright provides creation incentives, surely some incentive comes from the expectation that one’s heirs may enjoy the fruits of one’s creation, or that one will be able to sell/assign ownership rights. We can quibble over precisely to what extent the author internalizes benefits enjoyed by his/her descendants after the author’s death, but that doesn’t strike me as the point you are making. In short, the ownership rules don’t really seem so arbitrary here. I suppose, once in a while, the consequences of perfectly sensible, non-arbitrary ownership rules may seem arbitrary, but that is quite a different matter entirely.