March 23, 2007  ·  Lessig

As reported at the Stanford Center for Internet and Society, Shloss v. Estate of James Joyce has settled. As you can read in the settlement agreement, we got everything we were asking for, and more (the rights to republish the book). This is an important victory for a very strong soul, Carol Shloss, and for others in her field. I am grateful to our team for their hard work. (Contrary to some news reports, while I was instrumental in bringing this case and in setting its strategy, the settlement was effected by Anthony Falzone and David Olson.) (Press Release).

But this is only the first in what I expect will be a series of cases defending the rights of academics against improperly aggressive copyright holders. I hope this is the last case against this particular defendant. But we’ve already seen others that may prove as egregious as this. One important part of the mission of the “Fair Use Project” is to defend the rights of scholars and academics, drawing more clearly and practically the boundary that “fair use” is intended to defend in theory. Stay tuned.

  • Triona

    I’m sad to hear that the James Joyce estate does not respect the values of the author – I’m sure he’d be turning in his grave

  • Brian

    congrats and thanks for all the hard work you put in!

  • Robert Nagle

    Can individuals trying to exert fair use rights without a team of university attorneys gain any benefit from the outcome of this case?

  • lessig

    Unfortunately, under our system, the only thing we can do is to raise the cost of behaving badly. We’ve committed to defending in any good case. We’re recruiting others to do the same. More will have to await the revolution.

  • three blind mice

    The work of literary scholars is inherently transformative,” said Carol Shloss, acting professor of English at Stanford. “We take the writing of someone whose work we love and share it with others.”

    this is a curious sentence. there is no dispute that “fair use” is intended to permit academic study and comedic parody. the key in both is, of course, transformative creativity.

    copying large portions of an authors work verbatim is hardly transformative. “tak[ing] the writing of someone whose work we love and shar[ing] it with others,” as carol schloss remarked, is the work of a publisher, not an academic.

    what possible need is there for carol schloss to reproduce even one sentence of anything written by james joyce whose works remain widely available?

    We keep our human inheritance alive by making it part of a dialog with our peers, our friends, our students and the generations that follow us. When that dialog is interrupted, when we are squeezed between the aggression of literary estates and the apprehensions of publishers, something very important is lost.

    blah blah blah. she sounds as though she got caught with her hand in the cookie jar and she’s trying to defend herself with words about feeding the world’s hungry.

    dialogue is good. COPYING is bad. copying is not always plagarism, but it can be just as malignant to academic study.

    when the transformative creativity of academics and artists are comprimised by the increasing ability (and apparently acceptance by other academics) to copy verbatim what other minds have already produced something very important is lost. think for yourself, write your own words, and mr. copyright is no one but your friend. when you start worrying about copyright, you should start worrying about your ability for original creativity.

    it is a pity that the copyright owner and not the academic community had to bring this pressure. now that a settlement has been reached, is there no one to encourage/enforce academic creativity?

  • Elsie

    Three blind mice, when a literary scholar quotes material verbatim, one is not simply reproducing the material in total, but rather commenting, analyzing and critiquing the text. Assume that a scholar is analyzing a poem with 20 lines. If a scholar were to be limited to only reproducing five lines, or one quarter of the poem, the scholar’s ability to analyze the structure of complete poem would be compromised. A literary scholar intersperses one’s own comments on the text with the text in order to highlight specific aspects of the text for analysis.

  • anon

    Let’s bring the focus back to what this “scholarly fair-use” dispute is about. Schloss wanted access to private medical records to buttress her theory that Joyce’s daughter, who was institutionalized for mental illness, was really — according to Schloss — a victim of family incest.

    Joyce refused Schloss access to the medical records. Compassionate, decent human beings would agree that it is anyone’s right to protect their family from tabloid exploitation. He had no fair-use copyright obligation, nor any other obligation, to cooperate with Schloss by making private records available for her public comment.

    And lack of access to these private medical records did not prevent Schloss from publishing her theories, nor quoting from Joyce’s writings. Her book was critically panned. She’s blames that on her lack of evidence. And vindictively turned to the courts to blame Joyce.

    CIS saw another opportunity to trump up yet another assault on fair use on twisted grounds. They should be ashamed.

  • ACS

    I agree with the mice on the basis that fair use should be restricted, in an academic context, to copying of only that necesary to “dialogue” the work without devaluing that work. That is a fairly delicate balance to maintain. I dont think, for example, cliffs notes should be allowed to reproduce an entire work and just insert their comments – surely that is making an adaption of the existing work which, if allowed, would displace the exclusive economic rights of the author/copyright owner. For that reason copying verbatim is bad (nice use of language mice).

    On the other hand, where an academic makes a statement and seeks to back that statement up with a quote from a work, then that copying should be covered by fair use. I think that is the traditional delineation between fair use and blatant copying.

    The academic value of “literary scholars” is something which must be recognised by copyright laws, and is, through fair use provisions, but at the same time we wish to conserve the value in those rights. I think Schloss certainly crossed that line – otherwise the parties would have proceeded to the Court. ;)

  • Hoper

    three blind mice’s comments make me want to throw up

  • PR

    This comment is more of an unrelated query that I’ve been trying to get a response to from someone who knows a bit about the Constitution for some time now: who is responsible for the final version of the 13th Amendment, and why is that person, or persons, unknown today? More pointedly, how did the 13th Amendment happen?

  • Ryan

    Yet another copyright battle won that should have never taken place.

  • Joe

    That is an important victory for academics. Scholars should have much greater freedom in the usage of literature than they currently do.

  • Chris Newman

    If you were sure you’d win, and the point of the enterprise (in addition to helping Ms. Shloss) is to set clear boundaries of fair use, why settle? We need precedent in this area.

  • Lessig

    The simplest way for a defendant to get rid of a case like this is to file a covenant not to sue. That would remove any threat w/r/t the plaintiff, and then any grounds for federal jurisdiction. This avoids that, while giving the client more than what the case asked for.

  • Chris Newman

    Is it clear in the wake of Medimmune that you can destroy declaratory jurisdiction that easily?

  • Dermod Judge

    Some years ago, I tried to get the rights to Joyce’s “Dubliners’ to make a TV series of the short stories, featuring Dublin based actors and each story to be directed by a different Dubliner. My meetings with filmmakers and buyers of TV programming at various maarkets indicated a ready market for such a concept.
    Then I aproached the Grandson!
    My ears are still ringing from the abuse he poured into them in a phone call from france to South Africa (where I work). My wife wanated to get industrail cleaners in to fumigate the telephone.
    Little did I know I was venturing where many more stalwart that I feared to tread.
    It’s a great pity that the grandson of the many-times-censored Joyce shpuld himself turn out to be the biggest censor of all.
    dermod judge

  • Dave

    There is a great streaming video of James Joyce’s “The Boarding House” at the Adam Smith Academy:

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