Larry Lessig Meets the Joyce Estate

Much fun though Bloomsday and the Joycean post was, Simon, you missed the deeper legal relevance for Slaw of the entire event.

Curiously, this is best explored in an interesting discussion of how Stephen James Joyce, James Joyce’ grandson who controls the writer’s estate, has used copyright threats to deal with writers and scholars. The article is in this week’s New Yorker – an odd place for an informed discussion of the consequences of lengthening copyright terms But then the New Yorker has long had a reputation for publishing thoughtful pieces on legal issues – Charles Reich and Jeffrey Toobin..

Where the piece becomes interesting is when it introduces Larry Lessig and a lawsuit by his Stanford colleague Carol Loeb Shloss which will be the next salvo in Lessig’s war against the ways in which extravagant claims by intellectual property rights holders impede creativity. Lessig expresses sympathy for Joyce’s grandson – it’s the extension of the term of the doctrine and its uses that’s pernicious.

In 2002, Stephen Joyce learned that Carol Loeb Shloss, an English professor at Stanford, was about to publish “Lucia Joyce: To Dance in the Wake,” a life of his mentally ill aunt. Stephen wrote to Shloss, implying that he might sue if she quoted from copyrighted material. He pressured her publisher, Farrar, Straus & Giroux, which asked Shloss to cut many quotations. An expurgated version of the book was published in December, 2003.

In the midst of her fight with Stephen, Shloss met Lawrence Lessig, a law professor at Stanford, who was willing to take on her case pro bono. Lessig believes that it is the first to accuse a literary estate of “copyright misuse”; the charge is usually levelled against corporations in patent disputes. Lawrence Lessig is the co-founder of Creative Commons, a popular online copyright-licensing project. That effort, combined with his fight against the 1998 Copyright Term Extension Act, has made him a leading authority on intellectual-property issues. In the 2003 Supreme Court case Eldred v. Ashcroft, Lessig argued that the Founding Fathers did not intend copyright to become a creative straitjacket. He quoted the Constitution to the Justices: “Congress shall have power to . . . promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings.”

Lessig thinks that Shloss’s case is more likely to succeed. “Have you seen her?” he said of Shloss. “She’s the quintessential academic—quiet, soft-spoken, modest. The idea that copyright law is going to descend on her and turn her life into hell shows that the law has lost touch with its purpose.”

In March, 2005, Lessig had suggested that Shloss prepare to post on a Web site material she had deleted from “To Dance in the Wake.” He then wrote to Stephen’s lawyers, explaining that the purpose of the Web site would be “to aid scholars and researchers,” and that, even though Farrar, Straus had asked Shloss to delete the material, the quotes fell under the doctrine of “fair use.” On April 8th, Joyce’s solicitors replied, expressing displeasure that Shloss was revisiting the subject of Lucia. Two weeks later, Lessig’s office reiterated that the Web site would eventually be going online. (The site has not yet been made accessible to the public.) That May, the estate’s lawyers wrote back that “Mr. and Mrs. Joyce have requested we convey their ‘astonishment’ ” at “an unwarranted infringement of the Estate’s copyright” and hinted at legal consequences. Lessig—with the help of Stanford colleagues —then prepared the suit.

Onwards and upwards Larry.

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