This Week In Techdirt History: May 1st - 7th

from the five-ten-fifteen dept

Five Years Ago

This week in 2011, the copyright nonsense was happening at home and abroad. The White House published its infamously terrible Special 301 Report to complain about countries with more enlightened views on copyright. Meanwhile, leaked cables revealed that New Zealand was also on the growing list of countries where the US tried to directly write new copyright laws. In Brazil, which had always been more progressive on the copyright front, citizens were asking the government not to throw out all that hard work.

Things continued to go bad for Righthaven as unsealed documents brought scrutiny to many of its cases, so it hired a "star" copyright lawyer to try to right the ship. A judge slammed John Steele's latest fishing attempt, too.

Ten Years Ago

The same week in 2006, the big content industries were doing the same thing with international copyright: trying to get more favorable laws by playing geopolitical leapfrog. One lawyer filed a motion asserting that the RIAA's $750-per-song infringement fines were unconstitutional, though really the RIAA just should have noticed that fans will pay for music if given a good reason (and that in the movie world, the war on piracy was not working).

There was a push in congress for a new law forcing ISPs to retain data on users, and it was receiving surprisingly little pushback. In response to what opposition existed, the law's backers acted mystified that anyone could possibly have any issues with the plan. Didn't congress have anything better to do, like putting online poker players in jail for some reason?

Fifteen Years Ago

This week in 2001, we were in the midst of some of the early fears about Chinese cyber-attacks — but these fears were amusingly misdirected at run-of-the-mill website defacements most likely performed by average script-kiddies (or perhaps hackers for hire). Documentarians were clambering over each other to cover Silicon Valley, and random unsubstantiated claims like "the internet as addictive as gambling" were all the rage. But the biggest source of buzz in the tech world was the fast-approaching release of the X-Box.

Napster was in some unsuccessful talks with Microsoft, while some were pointing out that file-sharing has history on its side. Aimster was going on the offensive, suing the RIAA in what appeared to be a publicity stunt.

Thirty-Eight Years Ago

"Spam" existed in various forms (and without that name) prior to the digital era, but May 3rd marks a notable milestone: the first mass unsolicited digital communication, in 1978. It was an advertisement for a new computer, sent in bulk to 393 recipients on ARPANET (who were, for the most part, none too thrilled).

Filed Under: history, look back

This Week In Techdirt History: April 24th - 30th

from the same-as-it-ever-was dept

Five Years Ago

The ACTA saga continued this week in 2011, as things began to become quite the mess. Homeland Security complained to the USTR that ACTA was a threat to national security, while the latter was withholding a Congressional Research Service report that confirmed the agreement's highly questionable language. As was widely suspected, it was also confirmed that the US was the lone holdout refusing to release the text of ACTA, though a former DHS official was calling it a "sweetheart deal" for IP owners.

Righthaven was slammed by yet another judge, even as it refused to cut its losses in a court that had previously shut down its requests. Yet despite this kind of thing getting more common, in the big picture it appeared that the shakedown schemes of most copyright trolls were working.

This was also the week that Sony suffered a massive hack to the Playstation network, losing lots of personal info and bracing itself for serious consequences.

Ten Years Ago

A lot of this week's news in 2006 came out of the big conference on copyright at the Cato Institute, and the fact that Rep. Lamar Smith had introduced new legislation to expand the DMCA (and, because why not, some attempts to expand trademark law too). The sentencing guidelines were wacky, giving a bigger penalty to piracy than to things like assaulting a police officer or possessing child porn. We also so an attempt to require DRM on streaming music, and fun IP abuses like trying to force all Elvis impersonators to buy licenses, or the RIAA suing yet another family with no computer.

Also, while Facebook was around in 2006, it's easy to forget that it was still only open to students — and this was the week it started pushing beyond that boundary.

Fifteen Years Ago

We saw a sad but telling story in 2001: the creators of the DRM encryption system SDMI held a contest to hack it, with the problematic clause that entrants couldn't publish their research — leading some to go ahead with it on their own terms, freaking out the folks at SDMI. This week, they threatened a professor who had succeeded and suggested he should destroy every copy of his paper; while I doubt he went so far, the threats were enough to stop him from presenting the research to anyone. The whole thing made the SDMI folks (and their RIAA friends) look really bad, but they don't seem to have learned much of a lesson from it.

Techdirt also launched two new features this week in 2001. The first was something called QuickLinks, and it was mostly a disaster and removed the next day. The other was our adoption of a little something called RSS. That one fared a bit better.

Two-Hundred And Sixteen Years Ago

Today, it's a significant part of the government, with bizarre and highly important powers to define aspects of copyright law. But back when it was created by John Adams on April 24, 1800, the Library of Congress was only that: a library. It was given $5000 "for the purchase of such books as may be necessary for the use of Congress ... and for fitting up a suitable apartment for containing them" — which at the time translated to 740 books and three maps ordered from London.

Filed Under: history, look back

This Week In Techdirt History: April 17th - 23rd

from the there-is-no-news-today dept

Five Years Ago

This week in 2011, the cracks in Righthaven's facade were starting to widen. One judge explained that their demands were silly then slammed their tactics and unsealed a damning document, which revealed that Righthaven's copyright assignments from Stephens Media were a sham, only assigning the "right to sue". Meanwhile, the company was defending itself before another highly skeptical judge.

YouTube was facing a lot of criticism over its problematic copyright school (though it wasn't as bad as some "educational" offeringsthe associated quizzes, to the point that Public Knowledge was offering $1,000 to anyone who'd create a better one. The RIAA lawyer fighting the Limewire lawsuit was recommended as a federal judge while Grooveshark was defending its own legality and the MPAA was contradicting itself on the subject of protecting culture. This was also the week that we saw the birth of Kopimism.

Ten Years Ago

In the world of copyright lawsuits this week in 2006, we took a closer look at why MP3.com never appealed the ruling against it, while one federal judge was considering possible defences against RIAA filesharing lawsuits. The FCC commissioner was pushing for DRM for no real reason, one economist was trying to blame piracy for the high price of concerts, and Mike was heading to Washington to discuss copyright at the CATO Institute.

Laws against driving while using a cellphone were still proving popular, even if that required misrepresenting studies that actually said all distractions are bad. And in the world of completely unsurprising studies, we also learned that people use the internet, especially internet users and kids can find their way around web filters.

Fifteen Years Ago

This week in 2001, people were grappling with predictions about emerging technologies, from the mostly-doomed (interactive TV) to the partially-successful (RFID tags are everywhere even if they never fully replaced barcodes) to the still-emerging (augmented reality) to the we-really-should-have-this-all-sorted-by-now (fiber to the home). A not-particularly-funny New York Times was calling for relationship counselling for the music industry and its customers while an always-funny Douglas Adams was delivering the keynote at the Embedded Systems Conference. Those who looked ahead with a bit more concern were noting that mass online victimization via data theft and hacking were just around the corner (and UK intelligence agencies couldn't even stop losing laptops).

Eighty-Six Years Ago

We've all seen the absurd lengths cable news networks will go to in order to keep something on screen 24 hours a day, even when they have nothing interesting to talk about. On April 18th, 1930, BBC Radio took a slightly different approach that's almost unimaginable today: they simply announced that there was no news, and played some piano music instead. Of course, there actually was news, just as there's plenty the cable networks should be turning their attention to today, but at least then they had the reasonable excuse that said news couldn't possibly have reached them in time.

Filed Under: history, look back

This Week In Techdirt History: April 10th - 16th

from the through-the-ages dept

Five Years Ago

This week in 2011, even as the Defense Department was dragging its heels in fixing the security hole that lead to the Wikileaks disclosure, the government was torturing Chelsea Manning (then Bradley) and courting criticism from a wide array of legal scholars and even mainstream media reporters. Meanwhile ICE, for its part, was trying to claim it wasn't detaining a Wikileaks supporter by redefining detainment.

Facebook was facing attempts to take credit for its success, both from unknown randoms and the infamous Winklevoss twins who were told to give it up already but apparently weren't satisfied with $160 million.

We also had an interesting hypothetical discussion about who owns the copyright on a tattoo, followed up by a related real-world example of the issues around getting a tattoo of a copyrighted design — but little did we know that only a week later, the Mike Tyson/Hangover 2 face tattoo copyright fight would kick off.

Ten Years Ago

This week in 2006, the film and TV world was in the midst of crashing into the digital world. DVR pioneer TiVo was experimenting with advertising while television networks were moaning about Cablevision's own DVR plans; Disney was throwing too much weight behind its ill-fated MovieBeam offering but in the bigger picture was starting (or at least trying) to lead the way, especially with ABC launching ad-supported online versions of its shows. Fox was approaching things slightly differently, focusing on its affiliates where other networks were bypassing them. And as some noted, telcos could truly revolutionize TV but faced some serious obstacles to doing so. At least it was all a much more compelling intersection of entertainment and technology than yet another attempt to add smells to films.

Fifteen Years Ago

Five years before that in 2001, NBC was shuttering an earlier effort at moving online: the NBCi entertainment web portal, which failed for a host of reasons. TiVo was still fresh and competing with Microsoft's Ultimate TV, and both were being plugged by Joe Montana — and it was already clear to many that DVRs would change television forever. As for movies, their forays online were all about promotional websites, some of which were starting to get at least a little bit interesting. And there was even another story from another example of that perennial project to give us the smell-o-vision nobody asked for, with DigiScents throwing in the towel.

But the biggest technology frontier was still wireless, which appeared to be suffering from hype fatigue amongst the public. One company was pitching its fancy new video messaging as the killer wireless app, but it would be a long time before SnapChat came along and made that assertion sound less stupid. Other ideas of the time fell at various places on the "doomed" spectrum, from another post-VRML attempt at the 3D web to a far-ahead-of-its-time web-enabled smart air conditioner.

Three-Hundred And Six Years Ago

You all know it: The Statute Of Anne, grandpappy of all copyright law. It was on April 10th, 1710 that it came into effect, and that day also served as the publication cutoff point for different durations of copyright protection.

Filed Under: history, look back

This Week In Techdirt History: March 27th - April 2nd

from the copying-the-past dept

Five Years Ago

After all the DMCA talk this week, it's interesting to see all the related battles that were happening back in 2011. We saw a court reject the idea that the DMCA requires service providers to proactively block infringement; we debunked the idea that the public domain is a bad thing and showed examples of how just letting people use your content is often a better choice than struggling with licensing. In general it was clear that greater IP enforcement simply doesn't work and copyright doesn't even make sense in cognitive science terms — but that didn't stop broadcasters from trying to block time-shifting options or ISPs from trying to throttle infringement but hurting World Of Warcraft players instead, or Boston College from telling students that a wireless router is a sign of copyright infringement. In the world of revolving doors, former Senator and fresh new lobbyist Chris Dodd was practicing his MPAA talking points, while a judge who was okay with lumping together a bunch of unrelated filesharing lawsuits turned out to be a former RIAA lobbyist, and the EU hired a former IFPI lobbyist to take the lead on copyright regulations.

Ten Years Ago

The saga continues as we move back to 2006, when Germany was seeking hefty jail sentences for file-sharers, TorrentSpy was trying to stop the MPAA from re-interpreting the Supreme Court in its favor, and experts were already pointing out that copy protection doesn't work and it was clear that nobody liked it (like the new DRM from Accenture that was too confusing for anyone to understand). This was underlined by the Korean music industry successfully selling DRM-free music at a higher price-point. An ISP that had formerly claimed filesharing was a huge burden admitted it wasn't, while YouTube was instituting its (now much more flexible) ten-minute time limit on videos as a scattershot way of reducing piracy and trying to avoid comparisons to Napster by courting official distribution deals.

And, given what's happening in America right now, it's fun to look back at our coverage of a silly Donald Trump business idea and remember how inconceivable today's circus once seemed.

Fifteen Years Ago

In 2001, copy-protected CDs were just getting ready to enter the US (and the problems were already becoming apparent). Despite all the doom and gloom, digital entertainment providers were doing just fine, though the same couldn't yet be said about mobile content: people just didn't seem to care despite all the hype, and the revenue had yet to materialize. Some were pointing out that internet companies still need to be innovative, though perhaps examples like MLB charging money for its online baseball audio broadcasts wasn't the best approach.

This was also the week that Google slightly surprised everyone by naming Eric Schmidt as chairman.

Eighty-Six Years Ago

Considering how awful the MPAA is these days, it's easy to forget that the group's current role was originally intended to be a solution to a different problem: the incredibly restrictive and censorious Motion Picture Production Code that clamped down on the free expression of American filmmakers. It was on March 31st, 1930 that the industry's MPAA-prototype first adopted the code (though it wouldn't be enforced strongly for four more years).

Filed Under: history, look back

This Week In Techdirt History: March 20th - 26th

from the 133-years-of-patents dept

Five Years Ago

This week in 2011, the New York Times had just launched its new paywall experiment. The newspaper expressed various mixtures of fantasy and denial, suggesting that people felt guilty about reading for free and that only college students and the unemployed would game the system. Of course, they were also trying to shut down those who took perfectly fair advantage of the holes they intentionally built in, and we even wondered if bypassing the paywall might have DMCA implications. Meanwhile, star columnist Paul Krugman was helping his readers figure out how to do it.

Techdirt had its first encounter with Barry Eisler when he turned down a half-million dollar publishing contract to self-publish his book instead, and noticed an interesting path-crossing in Amanda Hocking, a self-published author being courted by big publishers with contracts worth millions.

This was also the week that we got a very important ruling out of a big loss for Righthaven: a judge declared that even reposting an entire article can be fair use.

Ten Years Ago

This week in 2006, the RIAA got slapped down in its attempts to dig through people's computers for evidence of infringement. Meanwhile, one of its own studies was showing that file sharing was no big deal. Another study, from the Cato Institute, looked at how the DMCA has changed the nature of competition. Over in France, the parliament approved a law banning the sale of DRM'd content in stores like iTunes — garnering some serious kickback from Apple, which seemed rather contradictory in light of Steve Jobs' thoughts on DRM a few years earlier.

This was also the week when the web scored one of its most pointless but iconic victories, convincing the producers of Snakes On A Plane to go back and shoot a new scene heavily requested by fans online.

Fifteen Years Ago

There seemed to be a lot of buzz about email this week in 2001. President Bush announced that he would no longer use it, thanks to fear of open records requests; one professor was amping up its importance, putting it alongside speaking and writing as the third revolutionary step in communications, while another was spinning a story about how email isolates us and is broadly terrible. I suspect both might have been going just a tad too far. Meanwhile, the real fight was in the world of instant messaging.

One-Hundred And Thirty-Three Years Ago

The Paris Convention for the Protection of Industrial Property was one of the first international treaties regarding intellectual property, and it still stands today as one of the widely-accepted treaties in the world. Mostly it has to do with allowing companies to get patents in other countries and be eligible for that country's local protections — and it was signed on March 20th, 1883.

Filed Under: history, look back

This Week In Techdirt History: March 13th - 19th

from the hindsight dept

Five Years Ago

The ongoing fight between the FBI and Apple serves to highlight the importance of past disputes between the government and technology companies. This week in 2011, we saw a concerning decision by a judge to allow the feds to access Twitter account data on Wikileaks' associates, and noted that it raised some pretty big questions. And, of course, there was also still the ongoing issue of Homeland Security's domain name seizures where Rep. Zoe Lofgren was fighting the good fight.

Relatedly, the acting Register of Copyrights was strategizing about how to "starve" piracy sites, while the IP Czar was making some terrible enforcement recommendations, and the recently-minted MPAA boss, former Senator Chris Dodd, was playing the ol' "infringement is theft" card. The lawns were also well-defended from kids this week in 2011, with Bon Jovi claiming Steve Jobs killed music and Bob Woodward claiming Google killed newspapers.

Ten Years Ago

This week in 2006, it was Google embroiled in disputes with the feds. While one judge was considering forcing Google to cough up some user info for the feds in what might have been a show-trial covering a settlement, another was ordering the company to comply with a subpoena for a user's complete Gmail records. At least when pitted against someone other than the federal government they fared better, with yet another judge tossing out a lawsuit that blamed Google for Usenet postings.

In 2006, the head of the MPAA was Dan Glickman, and he was busy blaming piracy for the troubles of movie theatres, though that effort would be better spent coming up with more substantive promotional tactics. A handful of people were starting to realize the dangers of DRM, and discovering new ones like its toll on battery life. We also got the first whiff of Amazon's AWS platform.

Fifteen Years Ago

The turmoil in Silicon Valley hadn't changed much this week in 2001. Everyone was still a self-styled augur predicting contradictory futures for the internet, building hype around everything from online dating to the internet-driven death of democracy, then blaming each other for creating too much hype. Some were calling for a better revolution than we'd gotten, while others were pointing out that the true change was incremental and evolutionary. At least there were plenty of interesting layoff stories, including one with a turnaround of less than 24 hours.

85 Years Ago

Today everyone knows that India's Bollywood is a global film powerhouse that shares inspiration with Hollywood in both directions — but that cultural conversation extends a lot further back than many people realize. On March 14th, 1931, India's first "talkie" — Alam Ara — was released and became a massive hit. Especially interesting is that the film was inspired by Show Boat, a 1929 Hollywood film that was part-silent, part-talkie (and included a fully-silent version) for a time when not all cinemas were properly equipped for talkies. Then, five years after Alam Ara in 1936, Hollywood released a newly shot all-talkie version of Show Boat.

The 1936 Show Boat survives. The 1929 version was thought to be lost, but most of it has since been found and released. Alam Ara, sadly, has had no known surviving copies since the 1960s.

Filed Under: history, look back

This Week In Techdirt History: March 6th - 12th

from the liability-for-all! dept

Five Years Ago

First, we saw some fun (read: stupid) IP fights this week in 2011. There was Lady Gaga taking on Baby Gaga, the already-infamous makers of human breast milk ice cream (a part of her larger IP strategy which was all about her image, not her music). There was Zynga trying to trademark the suffix "Ville", Apple trying to trademark App Store on the groups that "App" stands for Apple, and Summit Entertainment trying to claim near-total ownership of the word "Twilight". And we haven't even gotten to the more traditional copyright issues yet...

On that front, we saw Rep. Lofgren continuing to defend the victims of ICE's domain seizures (something which predictably displeased the RIAA), Fox News sending a very meta DMCA takedown, and the RIAA attempting to claim trillions in damages from Limewire. Surrounding all this was a globe-spanning question about copyright: can platforms and service providers be held liable for what they host or link to? Russia, freaked out by the Arab Spring, certainly thought so; Turkey had just finished banning all of Blogspot over a few infringing blogs; a French court held Google liable for not magically blocking infringing movies; and in the US, the feds seemed pretty jazzed about secondary liability too.

Ten Years Ago

Of course, the secondary liability question was hardly new. In fact, five years earlier in the same week of 2006, we noted that it was the next big legal debate online. This was the same week that France was flipping back and forth on the notion of legalizing file sharing. At the time, though, a bigger concern was security. The identities of 17-million porn customers were breached", there was strange data leak speculation around Citibank, and there was a growing realization that stupidity, not hacking or malice, was the biggest cause of breaches.

Also this week in 2006: some people still just didn't care about the internet while others were willing to go on hunger strikes to get it; iTunes delved deeper into the world of TV shows while radio stations fended off ongoing accusations of payola; and Google bought Writely, paving the way for Google Docs.

Fifteen Years Ago

The favorite pastime this week in 2001 was still dissecting the dotcom downturn, whether that meant painting a rosier picture of the situation, outright deeming it a good thing, or simply looking for someone or something to blame (maybe... the Microsoft Case?)

Meanwhile, we watched as Hollywood continued bullying its fans over IP and commented on how that was probably a bad plan. Even more notably, this week's thread of online liability questions extends all the way to this week in 2001, when an early legal decision about suing anonymous posters started to set some precedents in that realm.

Three-Hundred And Fifty-One Years Ago

Today, there is a struggle to prevent scientific journals from locking up information and knowledge — but once, a long time ago, they were the first and only way to widely share that knowledge to begin with. One of the oldest and longest-running is the Philosophical Transactions of the Royal Society, the first issue of which was published on March 6th, 1665. And as is often the case with publications from that era, its full original title was extensive and glorious: Philosophical Transactions, Giving some Account of the present Undertakings, Studies, and Labours of the Ingenious in many considerable parts of the World.

Filed Under: history, look back

This Week In Techdirt History: February 28th - March 5th

from the the-riaa-never-changes dept

Five Years Ago

We saw some great stuff coming from Congress this week in 2011. Senator Ron Wyden demanded debate over the Patriot Act, Senator Chuck Schumer promoted the idea that websites should switch to HTTPS, and Rep. Zoe Lofgren challenged the IP Czar on the legality of ICE's recent domain seizures (which the agency's boss was struggling to defend). On the flipside, Rep Darrell Issa was making some more problematic comments to the IP Czar, while Senator Al Franken was still fighting for COICA and internet censorship.

On the side of creators and the IP industries, we saw Hollywood complaining that Oscar-winning films get downloaded more, HarperCollins trying to limit library ebook lending, Righthaven was suing a radio giant over a caption contest, Rosetta stone was calling Google "a gateway for criminals", and the Tolkien estate was trying to block the mere mention of Tolkien's name. To counterbalance all this, we did at least see Minecraft creator Markus Persson pushing back against the "lost sale" fallacy, and Moby calling for the reinvention (or death) of the major record labels.

Ten Years Ago

There were plenty of similar shenanigans this week in 2006. Hollywood techies were raising concerns about the industries fervent push to plug the analog hole, schools in Australia were facing a bunch of new copyright fees, we discovered just how insane Canada's blank CD tariff situation is, photographers emerged as one of the few groups opposed to orphan works legislation, and the RIAA was still indiscriminately suing everyone (and recently started targeting satellite radio) while its boss was trying to coin the term "songlifting" to replace piracy.

Fifteen Years Ago

Five years before that, in 2001, the RIAA had similarly acquired a new target: internet service providers. Lots of people were mulling over potential business models for a legitimate Napster, with some suspecting we'd be seeing the offering very soon. Meanwhile, alternatives were everywhere, such as Gnutella (which was facing trademark threats from the makers of the popular hazelnut spread) and a curious, hacker-ish alternative called ShareSniffer (the methodology of which seemed related to a big data breach at Indiana University).

"Weblogs" were catching on; the CueCat was not. Early discussions about 3D printers were underway. Some were wondering about the future of booksellers in an Amazon world, and others were looking even further ahead to the future of books in an ebook world.

Seventy-Seven Years Ago

Online resources are not without their errors, but at least those errors tend to get rapidly found and corrected. In the world of print, an error that crept into a book could often remain there for years. Such is the case with "dord" — a "ghost word" that was mistakenly added to the Merriam-Webster dictionary in 1931 and wasn't discovered until February 28, 1939. Merriam-Webster's excellent Ask The Editor videos include an explanation of how exactly this happened.

Filed Under: history, look back

Copyright History: The Strange Case Of A Book Authored By Mark Twain Via A Ouija Board

from the death-strokes dept

Mark Twain can be the subject of fascinating discussion for any number of reasons, but around these parts we talk intellectual property. Some years back, Mike wrote about Twain's support for copyright extensions, including when he even went so far as to advocate for infinite copyright. Well, it turns out that Twain's concept of infinite copyright might have been particularly germane to his legacy, as EFF's Parker Higgins takes us on a delightful stroll, over at Fusion, through the historical copyright case concerning the novel Twain might or might not have written...from beyond the grave.

The year 1917 was apparently a time in some ways even stranger than our own, in which the public was wrapped up in its interest in the occult. It was during that time that an author by the name of Emily Grant Hutchings attempted to publish the latest work of Twain's, entitled Jap Herron. Twain, the pen name of Samuel Clemens, had died in 1910, seven years earlier. So, how did Hutchings get Twain to write this book even as his body decomposed below ground? Why, through a Ouija board, of course!

The novel Jap Herron was published with an introduction by the purported transcriptionist, a journalist and author from St. Louis named Emily Grant Hutchings, about the book’s mystical origins. It came out in the midst of a “spiritualism” craze in the United States; its Bookman review, which noted that it was “unquestionably in Mark Twain’s style,” was titled “Another ‘Ouija Board’ Book.” Jap Herron wasn’t the first novel dictated from beyond the grave, but it had the highest profile “author,” which considerably raised the stakes.

This created a stir for all of the obvious reasons, but it turns out there was an intellectual property angle to the release of the book as well. The estate of Twain simultaneously expressed its skepticism that the book was authored from beyond the mortal coil, but it also insisted that if that were indeed the case then the estate owned the rights to the book and that publishing it ought to have been done through Harper & Brothers, with whom the estate had a contract for all of Twain's works. But copyright wasn't the only concern involved, either.

At the heart of the case were some novel legal questions: Can the law recognize a dead person as the author of a new work? And if so, could Twain’s ghost (or its human mouthpiece), wiggle out of Twain’s agreement with Harper & Brothers to publish all of his books? Finally, even if those copyright hurdles could be cleared, what about using Twain’s pen name, which the publisher held as a registered trademark? (Twain’s legal name was Samuel Clemens.)

This put Hutchings in a bind: using Twain's trademarked name in publishing Jap Herron served as a source identifier for consumers, helping her in that dispute, but doing so meant that the copyright of the book ought then to belong to Twain's estate. Going the opposite route and leaving Twain's authorship out of the claim relieved the copyright concern, but then any use of Twain's name would appear to be trademark infringement. Hutchings apparently tried to walk a fine line in this.

It seems Hutchings and Kennerley made a weak attempt to pursue this middle path by leaving Twain’s name off the cover—but they included his extremely recognizable picture, along with the caption “A Novel From The Ouija Board.” Even that wink-and-nudge act disappears by the book’s introduction, which describes the grueling ouija sessions in detail, and claims there’s no doubt that the novel is “the actual post-mortem work of Samuel L. Clemens.” To go any further in the distancing efforts would, of course, zap much of the appeal of the novel.

Harper & Brothers filed a complaint anyway, including a claim that the publishing of the book would bring harm to Twain's reputation and the value of the trademark on his pen name. Based on reviews at the time of the novel, that claim appears likely to be true.

It would have been interesting to see the results of the case had it gone to trial. Term lengths for copyright, after all, are dependent on a clear delineation between life and death. If death were to no longer be a barrier to authorship, the concept of copyright terms juxtaposed to its purpose of encouraging creative works would be turned on its head. After all, if one could create from death a work for the living, then death ought make no difference on matters of copyright terms.

Sadly, the mortal world never got to see that trial.

Alas, Hutchings and her publisher saw the writing on the wall and didn’t like their odds. Before the case could proceed through litigation, they agreed to pull the book from the shelves. As a result, paper copies from that era are rare and tend to fetch three- and four-figure prices at auction.

The paranormal copyright questions seem to have faded, and now Jap Herron has an immortality of its own: It is widely available online today. There’s no telling how Mark Twain or his publisher would have felt about that development. At press time, Twain did not respond to a request for comment.

So when we think about some of the insane copyright cases we see these days, remember that there once was a dispute over the rights ownership of a novel purportedly authored by Mark Twain from beyond the grave.

Filed Under: copyright, copyright terms, emily grant hutchings, history, jap herron, mark twain, ouija board, samuel clemens, trademark