US Banning Books: Unauthorized Catcher In The Rye Sequel Permanently Banned

from the burn-'em dept

Fri, Dec 17th 2010 11:59am — Mike Masnick

We were among those who were absolutely horrified when a US district court banned the US publication of a book called Coming Through the Rye by Fredrik Colting (using the pseudonym JD California), which was an attempt (a poor one, by many reviewers' accounts) to write a sequel to JD Salinger's iconic Catcher in the Rye. In the US, which is supposed to believe in free speech and be against things like banning books, it's somewhat scary that a judge would okay the banning of a book. The ruling appeared to disagree with previous rulings, and a bunch of powerful forces concerned about the free speech implications of banning books had lined up to support an appeal.

However, THResq reports that a permanent injunction has been issued, as the author and publisher of the book have settled the case and agreed not to pursue it any further. This is really unfortunate, because now the original book banning ruling stays valid and on the books for others to point to. Yet another example of copyright being misinterpreted, and censorship resulting. Copyright law is quite clear that there's supposed to be a separation between "idea" and "expression." Only the expression is protectable. Colting did not copy the expression -- he used the idea to create a brand new expression, and even if it sucked, it should not be banned. It's too bad that this is as far as this case will go.

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Filed Under: banned books, books, catcher in the rye. jd salinger, fredrik colting

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Marcus Carab (profile), 17 Dec 2010 @ 11:15am

Does *anyone* out there have a copy of the text to this book? Nothing would make me happier than to see it heavily distributed P2P. It's not that I want to support the piracy aspect of it (it'd be great to set up a flattr page for the author, but I suspect their settlement precludes anything like that) but rather that citizens seriously need to stand up against the banning of a book.

Though it apparently sucked, I'd read it. Streisand Effect + Moral Indignation = Curiosity.
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testcore (profile), 17 Dec 2010 @ 11:29am

Re:
Agreed, I'd love to get a copy as well, if only to show that this scenairo is similar to wikileaks - distributed systems can conquer censorship.
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Gabriel Tane (profile), 17 Dec 2010 @ 12:08pm

downplayed
Wow Mike... here's switch. Usually people come on here accusing you of hyping things up. Well, now I feel the need to tell you that you're downplaying something too much here:

"It's too bad that this is as far as this case will go."
This isn't 'too bad'... it's fsking scary!

As you mention: "This is really unfortunate, because now the original book banning ruling stays valid and on the books for others to point to." This is a dangerous precedent to set. Now anyone can simply make the case that a new expression is too much like their own and point here to get it banned.

Welcome to government-approved censorship ladies and gents. Last one out, please get the lights.
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Chronno S. Trigger (profile), 17 Dec 2010 @ 12:13pm

Re: Re:
I'm looking, but I've never been able to find E-Books reliably on torrent sites.

It's a hell of a thing to ban a book that's based off a book that's based off a poem.
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Gabriel Tane (profile), 17 Dec 2010 @ 12:15pm

Re: Re: Re:
try looking for PDFs... they can easilly be converted to e-books. Or, uh, so I've hear. _>
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Gabriel Tane (profile), 17 Dec 2010 @ 12:18pm

Re: Re: Re: Re:
Damn... double-fail. That was supposed to be "heard" followed by little emoticons glancing nervously left and right. Need to brush up on those. Or use preview. :/
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Chronno S. Trigger (profile), 17 Dec 2010 @ 12:20pm

Re: Re: Re: Re:
I usually avoid PDFs because they don't display right on my Nook (one of Dark Helmet's books is unreadable). But this time around I was just looking for the title, not a specific extension. It seems that it wasn't popular enough to be widely shared, that will probably change now. If I find it I'll let you all know.
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:Lobo Santo (profile), 17 Dec 2010 @ 12:21pm

Re: Re: Re: Re: Re:
Yeah, the parser errs on the side of caution with anything which might be an html markup of any sort.

Though, I've noticed some refinement in its operation lately...
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Marcus Carab (profile), 17 Dec 2010 @ 12:24pm

Based on this, I have a horrible, horrible idea that will probably come to pass before too long: fiction trolls.

A non-practicing "publisher" could buy up the rights to thousands and thousands of pulpy novels that never went anywhere, including cleaning out the stock of defunct publishing houses, then compile a huge database of all the character names, fictional cities and critical plot points. Then they could run the text of every new book that comes out against their database and bust out the lawyers for any matches and offer licenses to the publisher/author.

Of course then practicing publishers would have to keep their own stable of stuff, perhaps forcing all their authors to choose all character names from an approved list or spending oodles of cash to re-write books in a way that doesn't infringe.

(Sadly, thanks to this injunction, none of the above counts as satire anymore)
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Dark Helmet (profile), 17 Dec 2010 @ 12:28pm

Re: Re: Re:
"I'm looking, but I've never been able to find E-Books reliably on torrent sites."

They're actually everywhere. I've talked to a couple of authors about it. Turns out, because the file sizes are usually pretty small, they're usually set up in some sort of collection. For instance, you may have trouble finding "Jurassic Park" by Michael Crichton, but there are "Crichton Collection" torrents, or something similar....
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monkyyy, 17 Dec 2010 @ 12:33pm

a banned book, i wanta read it now, hope the author is smart enough to torrent it, the t shirts would probably sell well
"I READ A BANNED BOOK, THX INTERNET" 15$
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Anonymous Coward, 17 Dec 2010 @ 12:36pm

Re: downplayed
Call the Waaahmbulance.

The article here does what many attempt to do: muddy the waters by attempting to redefine things.

there's supposed to be a separation between "idea" and "expression."

There is a difference, but at some point, the ideas and the expression overlap. That overlap is critical in figuring out if the express is new or not. Clearly, this book would not exist in any way shape or form without Catcher in the Rye. It would not exist without the characters.

It isn't a parody, it is a serious attempt to extend a classic story, required reading in many schools (including mine). It attempts to piggy back on the classic and extract profit from it.

Put another way, if the book did not have a Holden Caulfield, and did not use the previous book as a basis for it's story, perhaps it would be original. In this case, without the significant character and the setup of the original book, the new work was meaningless.

The courts ruled the only way the courts could rule in this case: The new expression was entirely derivative of the original, and as such, violates the copyright of the original.

Regardless of the charged terms like "banning books" that TD choses to use, this is just a plain case of someone trying to greedily profit from the works of others, without permission. No hyperbole required.
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A Dan (profile), 17 Dec 2010 @ 12:39pm

What's Next?
I'm hoping for an unauthorized sequel to Farenheit 451.
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Anonymous Coward, 17 Dec 2010 @ 12:46pm

Re:
Marcus, this is a very long way away from any of that.

This isn't "general plot concepts" or "fictional cities", this is a specific and very significant character from literature, a story, a situation, and a setup. It isn't some vague "sort of kind of like" thing, is it?

No satire here either. The only satire is TD trying to call it a "book banning", which it is just a plain old violation of the original author's rights (assigned as they are to whoever has them now).
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Marcus Carab (profile), 17 Dec 2010 @ 12:49pm

Re: Re: downplayed
I'm afraid YOU are the one misunderstanding the idea/expression dichotomy.

The concept of derivative works refers to works derived from the actual text (the expression), not derived from the idea.

No portions of the original text were used in this work in any way. Even the name "Holden Caulfield" is not used - the character is referred to as Mr. H.

The new work might be "meaningless" (or at least have far less meaning) without the original work, but that does not make it a derivative, because its actual written contents (the expression) are in no way derived from the actual written contents (the expression) of the original - they are simply informed by the concepts (the idea) of the original.

A book review is essentially "meaningless" without the original book, but it isn't a derivative work, is it?

And yes, "banning books" is indeed a charged term, but it's also an accurate one. Regardless of what you might feel about the legitimacy of the decision or the reasons behind it, this book has been banned. There is an official legal injunction saying this book can never be published in the United States. It's a banned book, plain and simple.
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Anonymous Coward, 17 Dec 2010 @ 12:49pm

Re: Re: downplayed
In this case, without the significant character and the setup of the original book, the new work was meaningless.

Speaking of hyperbole . . . .
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Anonymous Coward, 17 Dec 2010 @ 12:51pm

Re: Re:
Until 2080. That's fair.
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Anonymous Coward, 17 Dec 2010 @ 12:54pm

Re: Re: Re: downplayed
This book is banned, in the same manner that the aural goofballs' redoing of the Beatles was banned. Sort of the same way that knock of Rolexes are "banned" when you put them in the crusher.

The author perhaps could take the time to have his own original thoughts, create his own original universe and characters, and actually be creative. Now that would be impressive (and legal).
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Marcus Carab (profile), 17 Dec 2010 @ 12:54pm

Re: Re:
I agree that this isn't the same as what I described, and yes I was using a little bit of hyperbole to make my point.

Then again, the current state of patents is a very long way away from their original intent, so I don't think it's really all that crazy.

And to reiterate what I just posted above, yes it is a banned book. You can defend that decision, and say that it was for the right reasons, but at the end of the day, the book has been banned. The United States can no longer claim it doesn't ban books without adding the caveat "except for copyright reasons." Mighty similar to how other far less free regimes in the world can say they don't ban books "except for reasons of national security". Rest assured, just like the Wikileaks affair, this will make it a lot harder for the U.S. to take an anti-censorship position in their foreign policy.

Quit trying to claim that this book isn't banned. It is. IT IS BANNED. Defend that banishment if you want, but I don't see how you can possibly claim it hasn't been banned. Because it has.
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Anonymous Coward, 17 Dec 2010 @ 12:55pm

Re: Re: Re: Re:
And, of course, there are specialized search sites which compose Google queries to find file locker-hosted ebooks via the blogs of the groups that upload them.

Those and a certain torrent search engine capable of searching the filenames inside torrents work very well.
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Anonymous Coward, 17 Dec 2010 @ 12:55pm

Re: Re:
Well, okay, that is based off of copyright lasting as it is today. I'm sure in 10 years it won't be until 2100. And then in 30 years, perhaps, 2040?
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Gabriel Tane (profile), 17 Dec 2010 @ 12:55pm

Re: Re: Re: Re: Re:
Download Calibre. It's a free 'library manager' that I use with my Nook. It also converts most known doc types (but has a problem with RTX docs O.o ) into ebooks that Nook can read. I converted all of my PDFs for things like RPG rulebooks to Nook-friendly.
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Anonymous Coward, 17 Dec 2010 @ 12:56pm

Re: Re: Re: downplayed
Expression is not limited to literal expression (i.e., the "actual text").

If you're going to accuse people of misunderstanding the idea/expression dichotomy, you should make sure you have a good graps yourself.
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Anonymous Coward, 17 Dec 2010 @ 12:57pm

Re: Re: Re: Re: downplayed
"creative" and "derivative" are not mutually exclusive.

His work may (in fact, almost certainly did) mix derivative expression with original expression.
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Sajuuk (profile), 17 Dec 2010 @ 12:58pm

I'm all for banning sequels if we can get a prequel ban in effect too and make it retroactive. That way He That Has Gone Mad With Power will get prosecuted for what He did to the Franchise Formerly Known As Star Wars.
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Anonymous Coward, 17 Dec 2010 @ 1:00pm

Re: Re: Re:
"United States can no longer claim it doesn't ban books without adding the caveat "except for copyright reasons.""

Um, when *could* the U.S. claim that? Nothing has changed.
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Anonymous Coward, 17 Dec 2010 @ 1:05pm

Not sure where Mike is getting his "idea v. expression" information from, but lifting a character wholesale is generally considered copying protectable expression, not merely unprotectable "idea."
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Gabriel Tane (profile), 17 Dec 2010 @ 1:09pm

Re: Re: Re: Re: downplayed
Interesting that you didn't reply to Marcus' points (thank you Marcus, by the way).

I also find it interesting that you seem to think that there's a correlation between writing a sequel that is your own story and knockoff (counterfeit) Rolexes and the Beatles copiers (they weren't trying for derived work, they were reworking what was there).

"The author perhaps could take the time to have his own original thoughts, create his own original universe and characters, and actually be creative."
And what about every single book written in the D&D universe (and there are many? They are all 'derived' off of D&D's universe, which is (as admitted by the creators) derived from Tolkien's Lord of the Rings books.
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bob, 17 Dec 2010 @ 1:13pm

I got one at Powells
Trade Paperback $13 bucks shipped.

Screw the ban
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Marcus Carab (profile), 17 Dec 2010 @ 1:16pm

Re: Re: Re: Re: downplayed
We can accuse each other of not understanding it until the cows came home, but it's not going to get us anywhere. If you want to defend book banning, be my guest. I will continue to oppose it, because I believe it is wrong and it sets a horrible precedent. When it is done "legally" I will continue to point out what I believe are the flaws in the rationale.

Frankly, I'm glad I'm not on your side. You have values and priorities that I find bizarre at best, and contemptible at worst.
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Marcus Carab (profile), 17 Dec 2010 @ 1:20pm

Re: Re: Re: Re: downplayed
"The author perhaps could take the time to have his own original thoughts, create his own original universe and characters, and actually be creative."

That comment makes it very clear that you don't understand the first thing about art, or its history, or its current state, or the process of creating it, or really anything else related to creativity.
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MrWilson, 17 Dec 2010 @ 1:21pm

Re: Re: Re: Re: downplayed
"The author perhaps could take the time to have his own original thoughts, create his own original universe and characters, and actually be creative. Now that would be impressive (and legal)."

That would be impressive, especially since originality is a subjective term.

Is Star Wars an original universe? It's arguably derived from Buck Rogers and Saturday matinee serials and Seven Samurai and westerns and World War II and ancient mythology. How much remixing is required for originality?
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Anonymous Coward, 17 Dec 2010 @ 1:26pm

Re: Re: Re: Re: Re: downplayed
"We can accuse each other of not understanding it until the cows came home, but it's not going to get us anywhere."

LOL! This reminds me of a Simpsons episode. After Homer forgets to pick up Bart from soccer practice and leaves him standin the rain: "We can argue about who forgot to pick up who from soccer practice til the cows come home!"

"Frankly, I'm glad I'm not on your side. You have values and priorities that I find bizarre at best, and contemptible at worst."

I'm not sure what "side" you think I'm on. I'm just pointing out the flaws in your argument/post.
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Marcus Carab (profile), 17 Dec 2010 @ 1:26pm

Re:
He didn't lift a character wholesale. He didn't even use the name "Holden Caulfield"

He created the original character "Mr. H" - who is indeed based on the idea of Holden Caulfield, but only after that idea has been mulled over in a brand new creative mind, a mind which transported the idea decades into the future so it could reinterpret it and create its own entirely original creative expression.

It's not just "the continuing adventures of Holden Caulfield," it's a brand new story that examines the same concepts in an entirely new light.
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Karl (profile), 17 Dec 2010 @ 1:30pm

Re: Re: Re: Re: downplayed
Expression is not limited to literal expression (i.e., the "actual text").

It's certainly supposed to be. Otherwise, how is the idea/expression dichotomy even possible?
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Marcus Carab (profile), 17 Dec 2010 @ 1:30pm

Re: Re: Re: Re: Re:
Shhh! ICE is going to seize your Gravatar!
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Marcus Carab (profile), 17 Dec 2010 @ 1:32pm

Re: Re: Re: Re: Re: Re: downplayed
LOL! This reminds me of a Simpsons episode

Yeah, this is totally as clear cut as the issue in that episode, with zero room for debate or interpretation. Very apt analogy. Excellent work.

I'm not sure what "side" you think I'm on. I'm just pointing out the flaws in your argument/post.

You are on the side that thinks the decision to ban this book makes sense. I'm on the other one.
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Anonymous Coward, 17 Dec 2010 @ 1:34pm

Re: Re:
I gathered from your prior post that you did not have access to a copy of the book, so I'm not sure what your description is based on. I have not read the book, so my understanding is limited.

That said, simply calling a character an "idea" does not make it an "idea" as that term is used in copyright law.

The idea/expression continuum runs from vague, abstract idea to specific expression. In the middle, it is hard to define one from the other.

But assuming the character is supposed to actually exhibit the characteristics of Holden Caulfield, that would almost certainly constitute copying of enough specific attributes to count as copying protectable "expression."

Whether or not the literal text "Holden Caulfield" is every copies is not determinative.
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Anonymous Coward, 17 Dec 2010 @ 1:36pm

Re: Re: Re: Re: Re: Re: Re: downplayed
Hey, if you want to defend your reference to literal copying of "actual text," as somehow meaningful, go ahead. Otherwise, I think your attempt to run away from that subject is perfectly analogous to Homer's similar attempt.

"You are on the side that thinks the decision to ban this book makes sense."

Interesting speculation, but I certainly haven't expressed that view.
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RobShaver (profile), 17 Dec 2010 @ 1:37pm

Let's all write a sequel CITR
So I suggest each and every person reading this blog and who is against banning books for any reason bang out a hundred page book "Pitcher in the Oats: the Unofficial Sequel", then set it up at a print-on-demand site like Amazon and/or put in a torrent. What would happen if there are hundreds or thousands of these floating around? Would they ban them all? Would they sue us all?

I just got Dragon Dictate software. Perhaps it can be a stream of consciousness treatises on what Mr. H thinks about how intellectual property rights have run amuck.

"It was the best of times (for patent trolls), it was the worst of times (for innovation)."

I know ... different book.
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Anonymous Coward, 17 Dec 2010 @ 1:40pm

Re: Re: Re: Re: Re: downplayed
"It's certainly supposed to be"

I don't think any opinion in the history of U.S. Copyright law has ever expressed that view.

The idea/expression dichotomy is a spectrum with nonspecific, abstract idea on one end, and specific expression on the other.

It is not easy to discern one from the other toward the middle of that spectrum.
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Anonymous Coward, 17 Dec 2010 @ 1:44pm

I wonder, is there a difference because they want to sell the book? Would it still be illegal if it was free?
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Marcus Carab (profile), 17 Dec 2010 @ 1:54pm

Re: Re: Re: Re: Re: Re: Re: Re: downplayed
In Homer's attempt, there is absolutely no doubt who is right and who is making it up.

In this case, I agree with you that there is something of a spectrum (good choice of word) that can be debated. That's why it was a dumb analogy that seems to suggest YOU are the one who believes idea/expression is a black-and-white affair.

Nonetheless the baseline concept of the dichotomy starts with "fixed expression", and that's NOT an abstract concept. The beginning assumption is that only the literal text is the expression. Yes, arguments can be made to extend protection beyond that, and I'm not saying you need to copy text verbatim to infringe on a copyright - but you also need to do something more than simply explore similar concepts with similar characters.
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Marcus Carab (profile), 17 Dec 2010 @ 1:55pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: downplayed
p.s. I would definitely like to hear more from Karl on this, as he might be able to bring some relevant case law into the discussion...
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Chronno S. Trigger (profile), 17 Dec 2010 @ 2:00pm

Re: Re: Re: Re: Re:
Damn, I stop paying attention for a few months and the entire concept of P2P changed. Crap, now I have to go do research.
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Marcus Carab (profile), 17 Dec 2010 @ 2:03pm

Re: Re: Re: Re:
In the other most high-profile case about a book like this ("The Wind Done Gone"), the appellate court struck down the original ruling that sided with the copyright holder. Generally speaking, the U.S. is pretty proud of not censoring things.

You are probably right that they never could *fully* claim that. But just because you're part-way down the slippery slope doesn't mean you should start gunning for the bottom.
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Anonymous Coward, 17 Dec 2010 @ 2:05pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: downplayed
Yes, the spectrum *starts* on the *extreme end* with literal expression, and covers much more than that before crossing over inti "idea."

That's why your statement "The concept of derivative works refers to works derived from the actual text (the expression)" is dead wrong.

"The beginning assumption is that only the literal text is the expression."

This is a false assumption, and only one made (whether beginning, middle, or end) by people who do not understand U.S. copyright law.
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StopWhiningAlready, 17 Dec 2010 @ 2:05pm

C'mon, really??
This is a tempest in a teapot. Nobody is banning books. The court is enforcing one party's right NOT to have it's intellectual property unfairly utilized by another party - period.

Look at it this way...

What would happen if I suddenly decided to write a book called "To Kill a Hummingbird" and the characters, setting, plot and historic elements bared a strong resemblance to "To Kill a Mockingbird"? If the court enforced an injunction (order to cease attempts to capitalize on someone else's IP) would that too be book banning? Of course not.

There are plenty of legitmate cases of unfair government involvement. Please take a moment to understand the situation for what it ISN'T before you begin protesting what you think it might be.
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Marcus Carab (profile), 17 Dec 2010 @ 2:07pm

Re: Re: Re:
I haven't read the book, but I have gotten all the information on its contents that I can. Perhaps I would change my mind after reading it, but I doubt it.

So tell me, if The Odyssey and Ulysses weren't separated by millennia, would Ulysses be infringing?

And if so, does that mean you believe Ulysses is not in fact original creative expression? Do you believe it is a derivative work that is only acceptable because of the time that has passed?
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Anonymous Coward, 17 Dec 2010 @ 2:08pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: downplayed
The most famous words on this topic, by the well-regarded, and awesomely-named, Judge Learned Hand:

"It is of course essential to any protection of literary property, whether at common-law or under the statute, that the right cannot be limited literally to the text, else a plagiarist would escape by immaterial variations."

Nichols v. Universal Picture Co., 45 F.2d 119 (2d Cir. 1930), cert. denied, 282 U.S. 902 (1931).
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Anonymous Coward, 17 Dec 2010 @ 2:14pm

Re: Re: Re: Re: Re:
Regardless of whether any particular case constitutes copyright infringement or not, the U.S. (whether under common law copyrigh or the first copyright statute from 1790) has *always* allowed the "banning" of books that violate copyright.

Now, whether or not this is an actual "ban" can be up for debate, but my point is that if you're going to call copyright enforcement a "book ban," then you've got to acknowledge that the U.S. has always done this, and most other countries do it as well, and it's nothing out of the ordinary.

That certainly undercuts the inflammatory "book ban" language, but it's logically consistent.
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Dark Helmet (profile), 17 Dec 2010 @ 2:17pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: downplayed
"Nonetheless the baseline concept of the dichotomy starts with "fixed expression", and that's NOT an abstract concept. The beginning assumption is that only the literal text is the expression."

I'm not defending it in any way, but generally characters are considered copyrightable, but they have to be specific and the infringing character has to be CLEARLY infringing....
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Anonymous Coward, 17 Dec 2010 @ 2:25pm

Re: Re: Re: Re:
"So tell me, if The Odyssey and Ulysses weren't separated by millennia, would Ulysses be infringing?"

I haven't read Ulysses, so I can't comment.

With regard to your other questions, I think most (perhaps all) derivative works contain at least some original creative expression, and some contain quite a lot of valuable creative expression.

As far as the passage of time, yes, that is certainly what makes the derivative works acceptable under copyright law. As a matter of what the law *should* be, I think copyright terms are too long right now.
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cc (profile), 17 Dec 2010 @ 2:29pm

Re: Re:
The original author is DEAD. Dead people have no rights. A living person's book was censored because some aspects of it were "sort of kind of like" the dead author's work. And for what? What good reason can anyone provide to justify for taking literature off the market?

It's like fucking book burning, is what it is, like the inquisition and Hitler used to do.
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cc (profile), 17 Dec 2010 @ 2:32pm

Re: Re: Re: Re: Re:
"I haven't read Ulysses, so I can't comment."

Omg... Epic fail.
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Mike Masnick (profile), 17 Dec 2010 @ 2:33pm

A comment from someone who's read the book
Since some people are claiming that this must be infringing, and have not read the book, I would suggest reading the following from someone who did read the book:

http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2009cv05095/346633/2 0/

It highlights how the newer book is clearly a commentary on the old one, and in fact, much more complex than the original story -- which would, once again, suggest that this is not a mere copy, and should not be banned.
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Anonymous Coward, 17 Dec 2010 @ 2:48pm

Re: Re: Re: Re: Re: Re:
You're free to look down your nose at me, but coming from someone who compares this injunction to Hitler and the Inquisition, your scorn doesn't bother me much.
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cc (profile), 17 Dec 2010 @ 2:55pm

Re: Re: Re: Re: Re: Re: Re:
That's OK, because I'm not the one defending the banning of a book.
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Anonymous Coward, 17 Dec 2010 @ 2:55pm

Re: A comment from someone who's read the book
"It highlights how the newer book is clearly a commentary on the old one, and in fact, much more complex than the original story -- which would, once again, suggest that this is not a mere copy,"

with ya so far

"...and should not be banned."

Well, that's not a necessary conclusion from "is not a mere copy."

Anyway, the declaration interestingly acknowledges that the book does copy (or include, or whatever verb you want to use) the Holden Caulfield character, though he is identified as "Mr. C," which pretty much blows the "didn't copy expression" argument out of the water, I think.
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airbrthr (profile), 17 Dec 2010 @ 2:55pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: downplayed
niiice!
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Anonymous Coward, 17 Dec 2010 @ 3:00pm

Re: Re: Re:
IRC is your answer. That's all I will say.
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Anonymous Coward, 17 Dec 2010 @ 3:17pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: downplayed
The law and art. What a funny pair you make.
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Lawrence D�Oliveiro, 17 Dec 2010 @ 3:32pm

Re: What's Next?
What�s the combustion temperature of a Kobo?
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Anonymous Coward, 17 Dec 2010 @ 3:36pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: downplayed
true
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Anonymous Coward, 17 Dec 2010 @ 3:39pm

Re: Re: Re: Re: Re:
I think copyright terms are too long right now.

True.
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Marcus Carab (profile), 17 Dec 2010 @ 4:43pm

Re: Re: Re: Re: Re: Re:
To be fair, I haven't read it either, though I intend to one day when I think I can actually grasp all of its contents (despite several readings of Portrait I still feel like there's stuff in that book I'm missing)

I use it as an example because it is widely accepted to be one of the greatest English language novels ever written, and it is a direct allegory of the Odyssey. However, it seems to me that all English scholars agree it is one of the most original works ever written: despite the fact that it borrowed the underlying idea of the Odyssey, it also combined that with new ideas and expressed it all in a way that revolutionized literature.

My point being that even if they weren't separated by time, it should still be considered an original work - and yet by your interpretation of the law, in that situation, it would be deemed infringing and the world would have been deprived of a great literary masterpiece.

Now, from what I understand about this book, it's *not* a masterpiece, but that's not what's important. If it's significantly original, which all evidence seems to say it is, then I shudder to think of it being banned.
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Marcus Carab (profile), 17 Dec 2010 @ 4:49pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: downplayed
If you think I mean verbatim copying is the only thing that infringes, then I've made my point poorly.

My point is that it is about the fixed expression of the work and the direct use of elements. If the work were significantly structurally similar, such as a trivial paraphrasing, that would still be infringing on the fixed expression, yes.

Note what the Judge said there - "else a plagiarist would escape by immaterial variations". We're not talking about immaterial variations here. I don't see how you can claim that an entirely new story that uses ideas conveyed in a previous story is infringing on the fixed expression of the original.
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Marcus Carab (profile), 17 Dec 2010 @ 4:51pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: downplayed
I'm not saying that's the current starting assumption in the courtroom - obviously it is not. But that is the starting assumption of the overall concept of the dichotomy, and that is the starting assumption from which the entire notion and law of copyright grew, so it's extremely important to keep in mind when attempting to navigate the legal grey areas.
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Marcus Carab (profile), 17 Dec 2010 @ 4:55pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: downplayed
Absolutely (and don't worry, I know you wouldn't defend it)

But that's just it: in fiction terms, is the old man version of a child really infringing? Is it even truly the same character? I think you could make strong literary and legal arguments that it is, in fact, an entirely new character.
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Marcus Carab (profile), 17 Dec 2010 @ 5:00pm

Re: Re: Re: Re: Re: Re:
Perhaps you are right. And yet, when we are dealing with a substantially original work, the book ban language doesn't seem inaccurate to me at all.

Society looks back on books that were banned for obscenity with a fair amount of shame, and I believe that if more cases like this happen, one day it will look back on books banned for "infringement" in the same way.
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Mike, 17 Dec 2010 @ 5:09pm

Talk about boring...
My god, has anyone actually read Catcher in the Rye? Its so damn boring and pathetic I, for the life of me, can't fathom how none though it ought to be banned to begin with.
ALL the characters are a bunch of unlikable idiots and did I mention how damn boring the whole thing is?
Seriously, its probably the most boring short novel I've ever forced myself to read.
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Marcus Carab (profile), 17 Dec 2010 @ 5:11pm

Re: Re: A comment from someone who's read the book
Did you even read the linked statement?

It seems quite clear that, as the professor states, this novel is essentially a literary criticism. It is clothed in fiction, perhaps, but stripped of those trimmings the ideas contained could also be expressed in an academic paper on the Holden Caulfield character. It is an entirely new work that directly comments on, critiques and presents hypotheses about two things: the author J. D. Salinger and his character Holden Caulfield. The fact that this is delivered in a combination of first- and third-person narratives is immaterial. We have been talking alot about the idea/expression dichotomy, but the fact is that this work is not just an original expression but also not even the same ideas - it is a critical commentary upon those ideas.
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abc gum, 17 Dec 2010 @ 5:28pm

I'm thinking of writing a book entitled "Celsius 232.778" will I encounter difficulties?
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The Groove Tiger (profile), 17 Dec 2010 @ 6:05pm

Re: Re: Re: Re: Re:
"You are probably right that they never could *fully* claim that. But just because you're part-way down the slippery slope doesn't mean you should start gunning for the bottom."

Well, you know, if you aim for the ground and miss, you could end up soaring the skies!
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Anonymous Coward, 17 Dec 2010 @ 9:59pm

Re:
Not in the US, where we still measure in feet, cups, dozens and not...those other things.
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Karl (profile), 17 Dec 2010 @ 10:55pm

Re: Re: Re: Re: Re: Re: downplayed
I don't think any opinion in the history of U.S. Copyright law has ever expressed that view.

It's not nearly as clear-cut as you present it. In fact, two copyright cases on this very issue seem to contradict each other. In Suntrust Bank v. Houghton Mifflin Company (the "Wind Done Gone" case), it was ruled that the clear use of others' characters was not infringing. On the other hand, in Anderson v. Stallone (the "unauthorized Rocky IV" case), it was ruled that use of others' characters was infringing (and, more disturbingly, that the original expression in the derivative work could not be copyrighted).

Obviously, I think this case is closer to the "Wind Done Gone" case. In order to see why, consider this quote from that case:

Holding an infringer liable in copyright for copying the expression of another author's ideas does not impede First Amendment goals because the public purpose has been served - the public already has access to the idea or the concepts.

(Incidentally, that entire ruling is worth reading - it is a very clear and concise presentation of copyright law.)

That's not remotely true in this case. "Coming Through The Rye" (obliquely) references Salinger's characters, but not a single other "idea or concept" has been copied. The plot, situation, and character development are all completely different. By banning this book, which is exactly what the court did by issuing a permanent injunction, the public is robbed of all of the original expression.

It runs exactly 100% counter to how copyright and free expression are supposed to be reconciled:

Copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by the work.

- Feist v. Rural

Building upon the works of others is one of the reasons fair use exists. In my opinion, Judge Deborah Batts made a huge mistake here. This is absolutely "censorship through copyright."

Not that anyone thinks the public lost very much. Here's another review by someone who actually read it, and who gives it a solid thumbs down. But even she says the book shouldn't have been banned.
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Karl (profile), 17 Dec 2010 @ 11:29pm

Re: A comment from someone who's read the book
I linked to this above, but here's another critique of the book:

What A Phony: I read the banned Catcher in the Rye "sequel" so you don't have to, by Juliet Lapidos at Slate.

Obviously, she does not share Martha Woodmansee's high opinion of the book. But even she does not believe that it should be banned. She compares the injunction against this book with the injunction against Joyce's Ulysses; and, in fact, does not even believe it is an "unauthorized sequel."

For the curious, here is the plot, as described in the review:

At the start of the book, Salinger � who communicates to the reader in italics � decides he wants to bring back his most famous protagonist, and a Mr. C, as in Caulfield, obliges by waking up in a nursing home at the age of 76. Salinger's plan, we soon learn, is to kill off C, who's been tormenting him all these years with "questions about this and that," but the character gets away from him. Literally. He flees the old folks' home and boards a bus to New York City. Over the next 200 or so pages, he: wanders around Manhattan; is moved (by his creator) to throw himself in a river; gets fished out (to his creator's dismay); finds a notebook belonging to Salinger; delivers said notebook to the 90-year-old author in Cornish, N.H.; discovers a file cabinet containing his "entire life"; narrowly escapes getting bonked over the head by Salinger with a cast-iron paperweight shaped like a dog; busts his sister, Phoebe, out of a nursing home; and ends up in yet another nursing home, but this time Phoebe's with him. Finis.

That, anyway, is the basic action, interrupted frequently by Salinger's italic musings about how killing off a character is harder than he thought it would be. In more capable hands, this conceit could have served as a springboard for a philosophically sophisticated examination of how much control an author has over his own creations.

If that is actually the book's purpose, it's a bit ironic that banning the book achieved it, while reading the book does not.
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Karl (profile), 18 Dec 2010 @ 12:02am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: downplayed
The most famous words on this topic, by the well-regarded, and awesomely-named, Judge Learned Hand:

It's a bit ironic that this case determined that the defendants were not infringing on copyright.

He does have an awesome name, though.
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Anonymous Coward, 18 Dec 2010 @ 6:34am

Surely you don't ever place your trust in a US Judge. It's a political position and like politicians they lie to get what they want.
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teka, 18 Dec 2010 @ 12:36pm

Re: C'mon, really??
what?

As long as you were not copying passages directly or stealing the exact names of character, it would be the exact same situation. That is, it Would be a rather unfair and questionable book banning.

If i write something with elves and dwarves and humans and other races fighting a Dark Lord, am i copying The Lord Of The Rings? maybe stylistically. Does that mean i am infringing and stealing and need to have my book banned by law?

no. It does not work that way,the law is not meant to simply lock up vast sections of creative expression because someone wrote a book somewhat like it one time.

as for "Nobody is banning books."
Permanently Banned From Publication in the United States. Gee, sure sounds like a ban to me.
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Darryl, 19 Dec 2010 @ 7:25pm

Nothing to do with Free Speech
free speech is about your right to be critial of your Government, you are free to talk out against your government, and what they do..

That is what free speech is about..

Its not about being allowed to say what you like, when you like, or any such other crap. It does not give you the right to take the work of someone else, and 'rework' it for your own profit and gains.

The court did exactly what it was supposed and required to do, free speech did not come into this case at all.

seems the only person who does not see this for what it is, is you Mike. '
Perhaps you need to brush up on your constitution.. before you make comment..
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Chris, 19 Dec 2010 @ 8:35pm

Not that simple
Copyright law isn't just about slavish copying -- it's also about preparing derivative works and copying higher levels of expression. Clearly, for example, translating something into a different language doesn't involve an exact duplication -- heck, none of the words would be the same. Yet, it would be an infringement nonetheless.

Nobody has a copyright on boy wizards who fight a dark lord. But, when you add in an English school of witchcraft and wizardry which is broken into four houses, a lightning-shaped scar, a government organization that keeps the existence of magic secret from non-magic folk, a giant groundskeeper, killing basilisk with a magic sword and so on, at some point, you're not just borrowing ideas from JK Rowling -- you're copying her expression. And, as a matter of law, that point is somewhere before you start copying her exact words.
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techflaws.org (profile), 20 Dec 2010 @ 1:19am

Re: Nothing to do with Free Speech
Its not about being allowed to say what you like, when you like, or any such other crap.

Damn, I only thought you were retarded but you actually are a lost cause. Don't breed!
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Gabriel Tane (profile), 20 Dec 2010 @ 7:29am

Re: Nothing to do with Free Speech
Wow... Darryl, this is a new low even for you. Go read up on the 1st Amendment sometime... and just so moderate laziness isn't to blame, here: http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution
Now, if you ignore that and don't read it, I leave you to stew in your own ignorance. I just ask that you don't come here and bother us.
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Anonymous Coward, 20 Dec 2010 @ 11:20am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: downplayed
I took "actual text" to mean verbatim copying, and certainly not including the structure, plot, etc., which is why I took issue with it.
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Anonymous Coward, 20 Dec 2010 @ 11:22am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: downplayed
Judging from the declaration that Mike posted a link to, the defense did not make this argument, but had an expert opine that it *was* the same character (at least she referred to the character as Holden Caulfield).
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Anonymous Coward, 20 Dec 2010 @ 11:25am

Re: Re: Re: Re: Re: Re: Re: downplayed
Um...I didn't present it as "clear cut."

The only thing clear cut is that expression is *not* limited to the actual text.

Unless I'm mistaken, the Wind Done Gone case did not rest on an "idea/expression" ruling, but on a fair use ruling, right? (I haven't read it in a while).
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Anonymous Coward, 20 Dec 2010 @ 11:28am

Re: Re: Re: Re: Re: Re: Re:
I do consider it an "original" work, but not completely original. I also consider Puff Daddy's remake of "I'll be Watching You" to be an original work, though it is clearly based on and incorporates a lot of material from the preexisting work from The Police.

I don't think just adding some original material gets you, or should get you, out of the woods in a copyright sense.
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Anonymous Coward, 20 Dec 2010 @ 11:30am

Re: Re: Re: A comment from someone who's read the book
Certainly relevant to fair use. Not relevant to whether expression was copied.
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Anonymous Coward, 20 Dec 2010 @ 11:33am

Re:
This must be based on your great and experience and understanding of the various state and federal judicial systems in the U.S., right?
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Karl (profile), 20 Dec 2010 @ 11:52pm

Re: Re: Re: Re: Re: Re: Re: Re: downplayed
Unless I'm mistaken, the Wind Done Gone case did not rest on an "idea/expression" ruling, but on a fair use ruling, right? (I haven't read it in a while).

On re-reading, I may have slightly misrepresented what the case actually ruled. The "Wind Done Gone" case did not actually find that the book itself did not infringe on the copyright to "Gone with the Wind."

It said that, even if it did infringe, a blanket injunction is unconstitutional. Even if it was infringing, and thus harmed the plaintiffs, "such harm can adequately be remedied through an award of monetary damages" - even though the plaintiffs sought an injunction, and not damages. Moreover, "it appears that a viable fair use defense is available."

In other words, an injunction is only constitutional if 1) monetary damages are not sufficient; and 2)if a "fair use" defense is not even possible.

Moreover, that is regarding an injunction after an adversarial hearing has already been held. Unlike these cases.
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Karl (profile), 21 Dec 2010 @ 12:03am

Re: Re: Re: Re: Re: Re: Re: Re: Re: downplayed
It would probably be clearer if I actually quoted the ruling, which is worded as well as I can word it.

In this case, we have found that to the extent Suntrust suffers injury from TWDG 's putative infringement of its copyright in GWTW, such harm can adequately be remedied through an award of monetary damages. Moreover, under the present state of the record, it appears that a viable fair use defense is available. Thus, the issuance of the injunction was at odds with the shared principles of the First Amendment and the copyright law, acting as a prior restraint on speech because the public had not had access to Randall's ideas or viewpoint in the form of expression that she chose.

We VACATE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.

(Emphasis mine.)
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Karl (profile), 21 Dec 2010 @ 12:05am

Re: Re: Re: Re: Re: Re: Re: Re: Re: downplayed
It would probably be clearer if I actually quoted the ruling, which is worded as well as I can word it.

In this case, we have found that to the extent Suntrust suffers injury from TWDG 's putative infringement of its copyright in GWTW, such harm can adequately be remedied through an award of monetary damages. Moreover, under the present state of the record, it appears that a viable fair use defense is available. Thus, the issuance of the injunction was at odds with the shared principles of the First Amendment and the copyright law, acting as a prior restraint on speech because the public had not had access to Randall's ideas or viewpoint in the form of expression that she chose.

We VACATE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.

(Emphasis mine.)
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Karl (profile), 21 Dec 2010 @ 12:06am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: downplayed
Sorry, double post.
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Karl (profile), 21 Dec 2010 @ 12:16am

Re: Re: Re: Re: Re: Re: Re: Re: downplayed
Oh, also:

The only thing clear cut is that expression is *not* limited to the actual text.

You are right about that. It's not limited to the actual text; for instance, novel descriptions in the text are protected (e.g. if you show a non-fictional biography to a Hollywood producer that invents a fictional character, and that producer makes a film with that character without paying you, it's infringement).

But even considering that, this case is hardly clear-cut. There is a pretty strong case for fair use; and even if not, it seems like the author could just change the names, and it would be 100% legal.
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bobb, 21 Dec 2010 @ 11:59pm

Re:
Only if you round up, and write of book burners.
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