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Copyright As Censorship: How Howard Hughes Used Copyright To Try To Block Biography He Didn't Like

from the a-look-back dept

Fri, May 13th 2011 7:39pm — Mike Masnick

One of the key worries about copyright is how it can be used as a tool for censorship if not watched carefully. Stephan Kinsella points us to an example I was not previously aware of, in which eccentric and reclusive billionaire Howard Hughes once purchased the copyrights on a series of articles about himself in order to try to block the publication of an unauthorized biography that was largely based on those articles. Looking into this further, what's amazing is that this strategy almost worked. The lawsuit that Hughes brought against Random House and author John Keats was successful in getting an injunction at the district court level, and was only overturned on appeal. That appeals court ruling has some interesting quotes in it, including questioning the fact that Hughes clearly bought the copyright just to sue (sound familiar?) and recognizing the clear First Amendment issues at stake:

The spirit of the First Amendment applies to the copyright laws at least to the extent that the courts should not tolerate any attempted interference with the public's right to be informed regarding matters of general interest when anyone seeks to use the copyright statute which was designed to protect interests of quite a different nature.

So while the end result here was good, the fact that this actually did work at the lower level highlights why it's important to constantly view actions in the name of copyright law against the First Amendment. It has become all too common for people to brush aside the natural conflict between copyright law and the First Amendment, and make misleading claims about how the "safety valves" of fair use and the idea/expression dichotomy mean there is no conflict. This is not true. There is an inherent conflict, and it's important that courts recognize this and weigh copyright law against the First Amendment. Fair use and the idea/expression dichotomy may help alleviate that conflict, but they are often applied arbitrarily and with little regard to the key First Amendment issues.

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Filed Under: censorship, copyright, howard hughes

5 Comments

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Stephan Kinsella (profile), 14 May 2011 @ 5:34am

Copyright vs. First Amendment
Mike, another interesting thing--the Constitution was ratified in 1789, including the copyright clause; the First Amendment came later, in 1791. If and to the extent there is a conflict, the more recent provision should prevail--just as the Constitutional amendment overturning prohibition worked b/c it came later.
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Loonesta, 14 May 2011 @ 6:28am

Copyright vs Howard Hughes
Your link to the alleged Hughes censorship is very vague, very nonspecific. Consider how the dates cited in your link are mid-1980's in origin, and that Hughes would have already been dead nearly 10 years by 1985. Might your link, w/its mention of "unauthorized biography" refer to the legendary HOAX biographer Clifford Irving trying to poke his nose in Hughes' business back in the early 1970's? I'd try to sabotage any efforts of Irving, too.
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DogBreath, 14 May 2011 @ 10:05am

Re: Copyright vs Howard Hughes
If you look at the "overturned on appeal" link Mike provided, you can see that this case was brought back in 1966, by Rosemont Enterprises, Inc. As to who they were, I'll let the following quote speak for itself:

http://digital.library.unlv.edu/hughes/
"Control of the Hughes Image reached bizarre proportions when Chester Davis, Hughes's Wall Street lawyer, vice president and chief counsel for Hughes Tool Company, created Rosemont Enterprises, Inc., a Hughes subsidiary whose sole purpose was to control all literary material past, present, and future about Howard Hughes. Staff were hired who located and inventoried all known stories published about Hughes anywhere, or any newsreel footage that existed. They tried to acquire exclusive rights over all footage and photographs. Through a network of informants, any writer researching or writing a piece on Hughes was reported to the Rosemont 'office,' in other words, to Bill Gay at the Romaine Street headquarters in Los Angeles. The writer would be investigated, contacted, informed that Rosemont had been granted by Hughes exclusive rights to his image and biography and would offer payment to the writer for exclusive rights to 'develop and exploit' the writer's material. If a writer could not be bought off, lawsuits were threatened against writer, editor and publisher. The Rosemont files contain investigative reports on a number of journalists as well as a number of unpublished pieces, some transparently fictionalized, about Hughes, for which the writer had accepted payment from Rosemont. Acquisition was not really intended for development, but for suppression."
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Ken, 14 May 2011 @ 5:31pm

Virtual Police State
What a lot of people miss about IP Maximilism is not only about it protecting the works of others but it requires a very heavy handed and almost dictatorial power by government to enforce. We are living in the information age where access to information is vital and the absolute control over it is tat-amount to having absolute control over our lives. Many conservatives and property rights advocates are often times the same people who claim to be for limited government but then are advocating a virtual police state to protect IP. It doesn't make sense and runs contrary Constitutional principles.
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casestud, 23 May 2011 @ 8:06am

Trademark too
Trademarks can also be used in the same way, for censorship purposes.

Here is a recorded case: Trademark infringement allegations from an Indian school house ('Global Indian Foundation' which owns GIIS schools in India/Singapore who,according to the C&D, own the GIIS trademark worldwide). The target is a blog whose name (http://www.forabettergiis.blogspot.com) contains the trademarked G-word bang in the middle of it.

The C&D notice is taken apart at http://www.chillingeffects.org/protest/notice.cgi?NoticID=33101 so I guess it is no more than a damp squib and a surprising case study.
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