James Joyce & Fair Use
Represented by Larry Lessig, Carol Loeb Shloss, an English professor at Stanford University, has filed a law suit in the U.S. District Court for the Northern District of California, against the Irish estate of James Joyce.
The lawsuit alleges that the estate has improperly interfered with the professor’s efforts to reproduce, consistent with the provision of “fair use” under copyright law, portions of Joyce’s writings. The estate reportedly has a long history of telling scholars and others that they cannot reproduce anything Joyce wrote without the estate’s permission. The professor seeks a declaratory judgment that her reproductions constitute fair use and, further, that the estate has engaged in copyright misuse and therefore cannot enforce its copyrights against her. The complaint is available here. The New Yorker also recently published an account of the case.
My article, Copyfraud, published this month in the NYU Law Review, deals with the problem of publishers, archives, and estates leveraging copyright law to prevent legitimate forms of copying and makes some proposals for how Congress and the courts should respond to this problem, including by expanding the rarely used “copyright misuse” doctrine.
Though I’m all in favor of developing the law in this area, I’m not sure that this is the right case to do it.
Some judges are going to bristle at this lawsuit. The materials at issue are excerpts from Joyce’s writings that the professor’s own publisher told her to remove from her book. At Lessig’s suggestion, she decided to post those removed excerpts on a website and provocatively told the Joyce estate of this plan. Copyright misuse, like patent misuse, is normally a defense once you’ve been hauled into court and found guilty of infringement. Here, the professor has not even been sued by the Joyce estate for infringement. Granted, she fears a lawsuit (as did her publisher), but there is a good chance that the court will deny the motion for declaratory relief–not wanting to intervene until the professor is actually sued.
This is a case to watch.