This Is America… Why Are We Banning Books?

from the good-questions dept

Last month we wrote about how a district court banned the publication of a so-called “sequel” (written by another author) to JD Salinger’s Catcher in the Rye. I had a lot of trouble with this ruling, which seemed to be a complete assault on the basics of free speech and a total misreading of copyright law. The book itself is not a copy, but something entirely new. Whether or not it’s any good (and some of the reviews say it’s not), it is a new creative work — the exact type of thing that copyright was supposed to encourage. It’s good to see a lot of other folks are quite concerned about this ruling as well, and the Fair Use Project at Stanford has teamed up with some other universities to file an amicus brief on behalf of the American Library Association and some other library associations, who are reasonably concerned about the free speech implications of banning the publication of a book such as this one.

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Comments on “This Is America… Why Are We Banning Books?”

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51 Comments
Yohann says:

Making it sound close...

What about writing the book to ‘sort of’ be a sequel, but not using any names or events from the previous book? It could be called “Catcher in the Wheat” or “Catcher in the Corn”. It could be argued that the story is about a baseball player who lives on a farm in another location. Would interpretation rule out in this case over the letter of the story?

How close does a story have to be in order for it to be considered ‘close’?

And suing is moronic anyway. Having a sequel to an old book would make me want to read the first one even more if the second one was good. I’ve never had to read ‘Catcher in the Rye’ and up until now the name was “out of sight, out of mind”.

Heck, didn’t the LDS church make their own ‘sequel’ to the Holy Bible? And do we see churces suing them for doing it? No…. well… not yet anyway.

ChimpBush McHitlerBurton says:

Re: Making it sound close...

“Heck, didn’t the LDS church make their own ‘sequel’ to the Holy Bible? And do we see churces suing them for doing it? No…. well… not yet anyway.”

Um…I don’t believe you can copyright the word of God, can you? Even if they aren’t “facts”

(oops, I blasphemed again!)

CBMHB

Anonymous Coward says:

“The book itself is not a copy, but something entirely new.”

No, it isn’t entirely new, or there wouldn’t be a discussion. It uses the character(s) of the original book, plus all the setup from the original book to situate and define those character(s).

It isn’t entirely new, it’s just the continuing adventures of Holden. If the book was written with different character names, would it be the same book? Nope, because the author would have to first establish all about Holden. Quite a different story when you look at it that way.

Alan Gerow (profile) says:

Re: Re:

So could the writer of Troll (the awesome ’80s horror movie) be able to sue JK Rawling because their story involved a young boy named Harry Potter that gets introduced to witchcraft and sorcery.

The Harry Potter books could EASILY be seen as a sequel to that movie, where his family gets killed and he gets whisked off to Hogwarts.

Because there’s a character name that’s the same, they both speak in English and use some of the same words (like “the”, “uh”, and “and”) and mannerisms (like standing around like a loaf while stuff happens around him) the set-up from the movie is loosely similar to the book, so it’s obvious that JK Rawling owes her entire fortune to ripping off an ’80s horror movie and creating a series of “sequels”.

Marcus Carab (profile) says:

Re: Re:

Perhaps what Mike should have said is: the *text* of the book is not a copy, but something entirely new.

Copyright, as you should know if you are going to step in on a debate like this, covers the expression of an idea, not the idea itself. Whether J. D. Salinger likes it or not (and I fail to see why he wouldn’t) the character of Holden Caulfield has become a widespread phenomenon – he’s impacted slang, Catcher has become standard reading in many high schools, and so on. The character of Holden Caulfield is an IDEA, and Salinger will forever be remembered and loved for having created that idea, but he has NO right to tell other people that they cannot explore the idea as well. In my understanding he has no right legally, and in my opinion he has no right morally either.

bigpicture says:

Re: Pfft

What a lunatic. If there was a factual news story published by entity A on Monday with places and characters. Then a follow up story was published on Tuesday by entity B using the same place and character names, can entity A then sue entity B for copyrighted work infringement. At some point you got to get REAL and admit that there is nothing new under the sun. Everything is an imitation or a recycle.

Cloackey says:

Re: Spoiler

Holden ends up in prison.

His famous “dog” impersonation gets his sister raped by a gang of PETA activists

and Old Man McGilvary sells his soul to the devil in order to get Holden out of prison and onto the rope-a-dope circuit, where he inevitably runs into the PETA activists and wastes them Carrie-Style.

Sorry Man, had to spoil it.

Anonymous Coward says:

“Having a sequel to an old book would make me want to read the first one even more if the second one was good.”

Yes, but what if it was bad? (as is the case here) It’s quite convenient of you to ignore the other side of the coin — that is, a possible negative association. Which of those two scenarios do you regard as more likely? or to simplify it further, what percentage of fan fiction do you think is worth reading? Or more bluntly, what percentage of fan fiction DOESN’T make you want to bludgeon yourself to death with a Kindle after reading the first few paragraphs?

Freetopia proponents often point to handful of baroque composers hundreds of years since dead, Danger Mouse, and Girl Talk as examples. What they never seem to realize is that their examples are infinitesimal and is thus not sufficient to demand what they are demanding.

But I digress, better to just leave logic out of it…lets do away with copyright altogether, throw the professionals to the wolves in favor worldwide cesspool of fan-fiction amateurism. I’ve got a great idea for a SCHINDLER’S LIST/SPONGEBOB SQUAREPANTS mashup!

nonameinsight (profile) says:

to the first Anonymous Coward so in other words in a political discussion you cant build off of one member of the discussion to prove your point?
what you just said is like saying that fan fiction, moding a computer, rebuilding a car and the sort are all illegal and we should be sued for them?
its all the same building off of one persons base to create a different and sometimes better structure.
no book should ever be banned no matter what the context of the issue. it is a violation of free speech and freedom of press

Anonymous Coward says:

Doesn’t really matter if he was using the characters or not. Using other authors characters for books is a time honored tradition. Normally its not for the idea of a sequel though. But instead to cast the characters in different situations, and tell your own story with beloved backdrops. How many re-tellings and alternate universe stories of Cinderella have there been over the years? The Wizard of Oz? Sherlock Holmes? How about Cameo roles? A walk on paragraph or page where a character in a book runs into a character from another book, a head nod toward one of the greats in the genre the author is writing in.

All these things happen constantly in books. The only difference I see is.. this author had the balls to call his book a sequel, instead of a transformative re-work of the original. Doesn’t make it wrong, just makes it more likely to suck unless done very very well because the author limits himself to those characters and the situation from the original book as a back drop. And with something like Catcher in the Rye, which is taught all over the place and seen by so many eyes.. he’s bound to flub something up.

Marcus Carab (profile) says:

Re: Re:

I recently read a brilliant novel by Timothy Findley called Headhunter, in which a young schizophrenic librarian accidentally releases Kurtz from Heart of Darkness into the city of Toronto. Through the course of the book Dr. Jekyll, Peter Rabbit, Dr. Frankenstein and others either appear as characters or are spoken about.

Anyway, it was incredible, and I read it after this whole Catcher thing began, so the whole time I was thinking how awful it would be if authors with such marvelous imaginations had to be worried about publishing their stories.

TW Burger (profile) says:

Book Banning

Hopefully this is a temporary injunction in effect only until a concise evaluation can be made. Works derived from other copyright material is allowed but there are limits. An author can’t expect to get away with writing a book about a James T. Kirk who captains a star-ship Enterprise and call it a derived work.

The Philip José Farmer River World books are a good example of using other fictional characters in your own material. As long as it is clear that the character is being used out of the original context or is a parody then copyright is not an issue. On the face of it the plot of Sixty Years Later does seem to fall into the parody category.

ChurchHatesTucker (profile) says:

Re: Book Banning

“The Philip José Farmer River World books are a good example of using other fictional characters in your own material. As long as it is clear that the character is being used out of the original context or is a parody then copyright is not an issue.”

IIRC, River World et al. used actual people, not their characters, but that is a distinction without a difference, IMHO. By my guesstimate, if the current copyright standards were in place, Farmer would have been free to use Twain/Clemens but NOT Tom Sawyer.

Twain would have loved that, by the way. So if you’ll excuse me, I need to write some slashfic about Twain and Voltaire meeting de Sade. There will be blood…

Anonymous Coward says:

Unofficial sequels to books are written all the time. Check out all of the “sequels” to The Time Machine. Only one of them is officially endorsed by the original author’s estate (and is quite odd).

As long as the author doesn’t present the book as an official sequel when it’s not, there’s no problem. If it’s no good, it’ll do no good.

El Guapo says:

The Incomplete Lawsuit

Elron, founder of the Snakeoilologists, stole and killed off the character of Harold Shea from L. Sprague de Camp and Fletcher Pratt’s _The Incomplete Enchanter_ in one of his stories. If you are not an “established” author (it was only de Camp’s 2nd novel, Elron had 6) you are simply prey — the industry will not have your back.

As an author myself I know that NO character is EVER original. Being a good writer means being good at covering up your theft. Strong copyright will only be used to impound and milk all “new” literature to an even greater degree.

Yohann says:

It won't stop anything anyway

If you can’t publish it legally, just publish it on the web. You can’t ‘ban’ a book, but you can keep it from being published and sold in the US. So why not the internet? Post it on a website outside of the country for sale, and if nobody buys it just release it to the public for free. The book is now out there and free for people to download. Now that there is enough attention drawn to it… perhaps it will get the rightful author to publish a ‘real’ sequel to it.

Michial Thompson (user link) says:

WOW, one of the few times I agree

WOW, this is one of the few times that I agree with mike on Copyright issues.

Dirivitive works like this being blocked is one of the pit falls of Copyright. As a kid I wrote lots of short stories that were all based on works of other authors. I would never have been able to learn to write English if it wasn’t for those short stories.

Author’s have the right to protect their work, but they shouldn’t be able to block other author’s from building onto their stories. At the same time though just rewriting a story using different wording should still be protected.

If I was a published Author, I would be flattered by someone else continuing my story. At the same time I am sure I would be irate if all they did was to re-write my story though.

Anonymous Coward says:

I ahve to add this: “banning books” is a pretty provactive term that suggests something that isn’t going on here. The book isn’t being banned or censored, it’s distribution is being blocked by a court order. Banning books suggests a Fahrenheit 451 mentality that just isn’t part of this.

Score one for sensationalist titles.

Belle de Monarch says:

Disappointing

Being from Australia, I have always enjoyed & respected the passion with which Americans fight for and hold onto their freedom of speech – but to have a book banned simply because an author decided they loved the original so much they wanted to contribute to its existence, well what the hell is wrong with you! Have you banned books about serial murderers or pedophiles or rape which glorify these horrendous acts? Nooooo, you decide that banning a book that serves no other purpose other than to continue the story of Holden et al, is far more important than commercializing and desensitizing our brains with the rubbish produced by the likes of Stephen King. DISAPPOINTING. Live up to your ‘freedom of speech’ and let it be published, and then if you don’t believe the book is one that you would read as it isn’t written by the original author – exercise your freedom to NOT BUY IT OR READ IT! Aren’t there more important things in the world that we should be worrying about than a few royalties going to someone else? What about starvation/poverty in the third world, sexual and physical abuse in the Church, racism, plagues in China, terrorism – I am sure you can find something that your money could be better spent on than court action against a harmless, probably entertaining piece of escapism that celebrates a piece of America’s history! Shame on you!

Belle de Monarch says:

Re: Re: Disappointing

Though taken, HolaJohnny, I fully appreciate your ‘head shaking’ and you have a kindred! You’re not alone in your inability to understand the direction this world is going in…but I’ll never lose faith in it.
P.s. Drunk Irish bastard (Marcus Carab, re: Pfft) – exactly the point

herodotus (profile) says:

“No, it isn’t entirely new, or there wouldn’t be a discussion. It uses the character(s) of the original book, plus all the setup from the original book to situate and define those character(s).

It isn’t entirely new, it’s just the continuing adventures of Holden. If the book was written with different character names, would it be the same book? Nope, because the author would have to first establish all about Holden. Quite a different story when you look at it that way.”

So Homer’s estate should have been able to stop Aeschylus from writing the Oresteia? or Euripides and Sophocles from writing their respective plays about Elektra?

Yes, that would have made things much better.

Anonymous Coward says:

“‘banning books’ is a pretty provactive term that suggests something that isn’t going on here. The book isn’t being banned or censored, it’s distribution is being blocked by a court order. Banning books suggests a Fahrenheit 451 mentality that just isn’t part of this.”

Indeed. It’s yet another example of TechDirt hyperbolic pandering that would be funny were it not so depressing.

ASH says:

The concept of character copyright is not a new one; it’s exactly why you can’t go ahead and make a new Superman movie, a new James Bond movie, a new Harry Potter movie, etc. etc., even if you come up with your own “new” story for the character. This has been settled law for decades upon decades in nations across the world.

And, this group is actually citing the Pentagon Papers in its amicus brief? Um, right. Those were government documents (public owned) that Nixon wanted to withhold for national security, and not anything even distantly related to copyright.

Some guy in Tucson says:

Congress has also outlawed old books

Congress has also outlawed old books ‘cuz they’re doing it to “protect the children” (TM).

“…It’s hard to believe, but true: under a law Congress passed last year aimed at regulating hazards in children’s products, the federal government has now advised that children’s books published before 1985 should not be considered safe and may in many cases be unlawful to sell or distribute….”

http://city-journal.org/2009/eon0212wo.html

From instapundit linked to Megan McArdle linked to above

Mary says:

Nothing sinister is going on here. The upset seems to stem from a misunderstanding here about the basics of copyright law.

If you own the copyright in a work, part of that includes the *exclusive* right to make (or license others to make) derivative works. Derivative works include sequels, movies, trivia books, and so on. This is the reason you can’t go out and publish your magnum opus Harry Potter 8: Harry Potter and the Magical Windshield. It’s the reason you can get sued if you make your own James Bond movie.

All this is well-settled law, not controversial at all. It was not caused by Obama and it is not a sign of the coming book-burning apocalypse.

[Note: The Gone With the Wind sequel, The Wind Done Gone, was allowed to be published because it fell under a fair use exception to the ordinary rule. It was a parody/criticism of, rather than a strict continuation of, the original.]

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