June 13, 2006  ·  Lessig

The Stanford Center for Internet and Society‘s Fair Use Project has filed a law suit against Stephen Joyce, who claims the right to control access to the papers and letters of James Joyce. The context of the suit is described well in this article appearing in the New Yorker by D. T. Max. The complaint in the case can be found here.

This is the first in what we expect will be a series of cases defending the boundaries of fair use. Stay tuned.

  • http://www.mahnamahna.net/ ////

    I’ve been studying Finnegans Wake with a reading group in Berkeley for nearly a decade now, and have met Carol Shloss and many other hardcore Joyceans who have long lamented Stephen James Joyce’s actions. I’m pleased as punch to see you engaging in this battle, Professor Lessig. Best wishes, and good luck!

  • http://bonobo-conspiracy.ca/ Matthew Skala

    It’d be very interesting to see if something similar happens in regards to J.R.R. Tolkien’s papers. His son has kept them closely guarded, shown only to a selected circle, with only commentaries, not the original papers, authorized for publication. With the original material unavailable, it’s arguable that the commentaries cannot meet academic standards of independent verifiability.

    The estate’s policy is somewhat controversial, and has created a division in the community of people interested in Tolkien’s invented languages between the ones willing to toe the line set by the estate and the ones who aren’t. Or at least, that’s the way things were a few years ago when I was interested in the subject. I haven’t kept up to date with what may have developed since, partly because I became so frustrated with the state of affairs described above that I sort of lost interest in the subject.

  • Matthew Rimmer

    Last year, I wrote this paper over some of the litigation involving the Joyce estate:

    Rimmer, M. “Bloomsday: Copyright Estates and Cultural Festivals”, Scripted (University of Edinburgh), September 2005, Vol. 2 (3), p. 383-428, URL: http://www.law.ed.ac.uk/ahrb/script-ed/vol2-3/bloomsday.asp, SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=759244

    I am giving a paper on the topic this Friday in Canberra, Australia, and previewing the new fair use law suit: http://law.anu.edu.au/nissl/Rimmer.pdf

    Matthew Rimmer
    ANU College of Law

  • Matthew Rimmer

    Last year, I wrote a paper on the subject of the Joyce estate and copyright law for a Scottish law journal: Rimmer, M. “Bloomsday: Copyright Estates and Cultural Festivals”, Scripted (University of Edinburgh), September 2005, Vol. 2 (3), p. 383-428, URL: http://www.law.ed.ac.uk/ahrb/script-ed/vol2-3/bloomsday.asp, SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=759244

    This Friday in Canberra, Australia, I am giving a paper on Bloomsday and previewing the new fair use law suit: http://law.anu.edu.au/nissl/Rimmer.pdf

  • three blind mice

    this is the first in what we expect will be a series of cases defending the boundaries of fair use.

    this is, more accurately, the first in what we expect will be a series of cases which attempt to extend the boundaries of fair use. that which is in need of defending is, once again, the right of property against the encroachment of the commons.

    the irony of all this would not be lost on joyce who was born into an ireland that was wholly occupied by the english. joyce would no doubt recognize this bald assault on his copyright as but a continuation of the ancient tradition of empires extending their boundaries onto irish soil by force and depriving the irish of tenure in their property.

    it seems the long shadows of cromwell and his new model army continue to cast a chilling darkness over irish expression and creativity.

  • Tom Barger

    Good news. Best luck, Professor. I was gratified to see your suggestion that legal aid group is being formed to help documentary film-makers push back against corporate licensing demands.

    I am reading again Neil Netanel’s work from 2000, “Market Hierarchy and Copyright in Our System of Free Expression.”

    Prophetic warning! Demonstrating that media concentration would use hoarding of materials and copyright restrictions to prevent new market entrants, and ultimately a threat to political speech.

    I have long felt the greatest tragedy of the era is the lack of access to the estate of Martin Luther King. Those who claim that the liberal party has no “ideas” to counter the Think Tank hegemon of the Repubs; my answer is MLK philosophy and Ghandi. And yet the greed of the heirs prevents a celebration and analysis of the roots of MLK’s own borrowing from the oral traditions of the ministry.

  • http://blog.opinity.com Tom Maddox

    Best wishes, Larry to you and the Center on this one. It’s an amazing instance of copyright law having a crippling effect on our shared culture.

    I’ve just written about it here: James Joyce, the Dog in the Manger, and Lawrence Lessig.

  • http://www.cmnewman.blogspot.com CMN

    Are their views on some points divergent?

    Shloss dissents openly from Joyce’s view on the legitimacy of academic and archival self help while Joyce dissents tacitly from Shloss’s views on suppresion of the influence of hebephrenic balletics on the paternal literature, citing both the existence of altenative methodologies for flaying felines and the dissheveled plumage of certain migratory Columbidae upon return to their habitation in the territory sobrinamed auric.

  • Gene McCallon

    Fair Use is a defense, not a grant of right under the Constitution–correct?

  • http://www.malignfiesta.blogspot.com Anthony Osborne

    The irony concerning Stephen Joyce’s policing of Joyce’s memory is that he is engaged in acts of outright censorship – fair enough if he wants to make sure he’s getting revenue owed him, or wants to protect Joyce’s good name, but the way he has stiffled debate and academic work is scandalous – and most unJoycean. It is also damaging the growth of Joyce studies … which his sainted grandfather would have never sanctioned.
    Hope you win.

  • icecow

    statement:
    Fair Use is a defense, not a grant of right under the Constitution—correct?

    answer:
    My understanding is a ‘fair use defense’ is a trademark term, not a copyright term, and that ‘fair use’ as applied to copyright is a 100% constitutional right, an element of free speech.

    Without copyright ‘fair use’ eventually nothing could be written. every snippet of thought would be digitized in to phrases and speech would grind to gridlocked stop. We all can feel the gridlock’s building pressure as text and media continues to shift to the digital realm at creation.

  • http://www.cmnewman.blogspot.com CMN

    To answer Gene and icecow, fair use is a statutory limitation on the scope of the exclusive rights granted by the Copyright Act. You can read the relevant statutory language here: http://www.copyright.gov/title17/92chap1.html#107

    Fair use has never been held to be a constitutional right; because it has always existed as a matter of statutory or common law, the question whether it is required by the Constitution has never come up. If Congress were to amend the statute tomorrow to abolish fair use, one can imagine that many (including probably the host of this blog) would argue that without fair use the Copyright Act did violate the First Amendment right to free speech. They would probably have a strong argument, but not a self-evident one, as copyright protects only certain fixed expressions, not ideas.

  • Roger Lathbury

    Whatever the rights of S. Joyce in respect to material by or about his mentally disturbed aunt may be, he has, in so far as the case of his grandfather’s book “Ulysses” is concerned, no rights whatsoever, as I see it. Although publishers and the estate of James Joyce have obfuscated the matter, it is, I believe, the case that “Ulysses” since September 1922 has not been in copyright in the United States and has always been, from a strictly legal perspective (although not from a moral one–see below), in the public domain.

    The copyright act of 1909 governed the protection of “Ulysses” when Sylvia Beach put out the first edition in February 1922. That act stated that if a book in English was not published in America within six months of its appearance abroad, copyright claim was forfeited. “Ulysses,” deemed obscene, could not be put out in America until more than a decade after its original appearance. Therefore, the original text has been in the public domain since September 1922.

    In 1934 Random House published “Ulysses” and paid Joyce and, afterward, his estate, royalties. Random enjoyed tacit exclusive rights to this work for this courageous action. What explicit legal rights it held remained unclear. The copyright page for the 1934 Random printing is confusing. It lists several dates, including ones for separate sections of the novel that appeared in Margaret Anderson’s “Little Review,” as well as the date of 1934 for Random House itself.

    What, however, does that 1934 copyright by Random cover? It cannot pertain to the text of the original edition, for that had been in the public domain for twelve years. Random’s copyright can apply only to the textual changes (some erroneous) introduced into its edition and to the special matter added when the book appeared in the United States–e. g., James Joyce’s letter to Bennett Cerf in the prefatory material.

    No person of probity would wish to deprive Joyce or his heirs of money due. All reputable publishers have followed the law with respect to “Ulysses.” Joyce and his estate have reaped fair benefits from “Ulysses.” Now it is time that “Ulysses,” like “The Waste Land” and “The Beautiful and Damned” and “Babbitt” and all works published in 1922, enter the public domain. Obviously Joyce’s grandson, however rebarbative, must be accorded the privileges allowed by the law, but no reason exists any more for publishers to hold back on putting out editions–scholarly, adaptive, inexpensive, or illustrated–of Joyce’s twentieth century masterwork.

    To the extent that the Joyce estate’s actions depend upon definding the copyright of “Ulysses,” it has no solid ground whatever to stand on.

  • Sean J Murphy

    One can only sympathise with a scholar who wishes to cite sources without restriction in order to support an argument. However, the forces endeavouring to wrest control of a valuable commodity from the Joyce Estate may not be entirely pure in their motivations. See my account of the murky business of the trade in Joyce manuscripts of uncertain not to say suspicious provenance: http://homepage.eircom.net/%7Eseanjmurphy/irhismys/joyce.htm

    Sean J Murphy

  • http://www.housingboomgonebust.blogspot.com Sydney

    The Joyce case will set a standard for future cases.

  • http://www.larrylinkler.blogspot.com LL

    The views here on ‘fair use’ make me feel like the definition is up for debate.