Sacrificed for a Mouse
I have refrained for a while from commenting on a decision near and dear to my heart because I feared intemperate words might fly forth on wings of wrath. Time has cooled this possibility and now I can say that the "Eldred" decision of the Supreme Court, while possibly (and only possibly) proper law, is cultural disaster. If this law had been in effect in the time of Mark Twain, his works would have entered public domain only in 1980, thus killing the possibilities of the many derivative works that Twain's work has given rise to.
But setting aside the issue of derivative works for a moment, the greater damage is done to those authors whose works are "protected" unto oblivion by this law. There are a great many authors (Thorne Smith (author of Topper and I Married a Witch), H. Rider Haggard (She and King Solomon's Mines [nearly perpetually in print, but try finding some of the others], James Gould Cozzens Castaway) whose works are only selectively in print at any given time. Presently I know of no book by Cozzens and none by Smith. Because these are not public domain, they will not be picked up by many of the low-level publishers that make their money producing inexpensive versions of public domain works. Hence, a whole field of authors whose work is simply dead. No one can publish them without the enormous effort of finding out who holds the rights, but neither will any publisher basing their revenues on the next Michael Crichton give these works a second thought. Think about your local bookstore--How many items by Francois Mauriac, Bjorn Bjornesterne, Par Lagerkvist, or Rabindranith Tagore have you seen on the shelves. All of these were Nobel Prize winning authors in their time--some, admittedly better left in the oblivion to which they have been consigned, but some (Mauriac, I think of particularly) far more worth reading that the vast majority of those who have been given the laurels in recent years. (Claude Simon? please--the average grocery list has far great readability and literary merit, Toni Morrison--talk about a sop to the pomo politically correct crowd, a very fine writer, but certainly not at her age of Nobel quality, the list does go on).
The point I make here is that much is lost to us through the shortsightedness of a congress that makes ever-increasing copyright limits on works, largely to protect trademarked products and enterprises--most notoriously, Mickey Mouse, for whom the newest copyright extension was specifically tailored.
However, as usual when the law oversteps itself, there are those already flooding the electronic wavelengths with reams of materials from these authors. In Australia, where the copyright law grants about 40 years less protection, the Australian Gutenberg project has already posted a good deal of Orwell, and now is producing much of Virginia Woolf's oeuvre.
I conclude this heady rant, more vitriolic than I normally care to be, with this caution from Maucalay's famous speech on copyright--
I am so sensible, Sir, of the kindness with which the House has listened to me, that I will not detain you longer. I will only say this, that if the measure before us should pass, and should produce one-tenth part of the evil which it is calculated to produce, and which I fully expect it to produce, there will soon be a remedy, though of a very objectionable kind. Just as the absurd acts which prohibited the sale of game were virtually repealed by the poacher, just as many absurd revenue acts have been virtually repealed by the smuggler, so will this law be virtually repealed by piratical booksellers. At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot. On which side indeed should the public sympathy be when the question is whether some book as popular as Robinson Crusoe, or the Pilgrim's Progress, shall be in every cottage, or whether it shall be confined to the libraries of the rich for the advantage of the great-grandson of a bookseller who, a hundred years before, drove a hard bargain for the copyright with the author when in great distress?Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create. And you will find that, in attempting to impose unreasonable restraints on the reprinting of the works of the dead, you have, to a great extent, annulled those restraints which now prevent men from pillaging and defrauding the living. If I saw, Sir, any probability that this bill could be so amended in the Committee that my objections might be removed, I would not divide the House in this stage. But I am so fully convinced that no alteration which would not seem insupportable to my honourable and learned friend, could render his measure supportable to me, that I must move, though with regret, that this bill be read a second time this day six months.
The trends he noted had already been prominent in the newsgroups and usenet, but I expect that frequent and flagrant violation of copyright will become more apparent and more difficult to pursue because of distributed service and other means of transmitting electronic files without a centralized server. I do not hail these efforts, but I do expect them to grow. I have noted the appearance in recent days of a great deal of material--it seemed almost as if the world had held its breath for this decision, and with its announcement, the floodgates had opened.
It is important to preserve our access to works that are not huge money makers. The present copyright act is in part responsible to the progressive restriction of what is found on the shelves of most bookstores. So bad is the trend that it is often difficult to find a book that is more than ten years old not written by some mega-blockbuster author. Check it out. See how many John Dickson Carr, A.A. Fair, Erle Stanley Gardner, and Ellery Queen novels you find on the shelves of the mystery section in your local bookstore. The loss of these treasures is an incalculable loss for literature and for genre fiction. It is an incalculable loss for all of us , and it is predicated on the protection of a mouse.
