Catcher In The Rye Sequel Fight Could Lead To Forced Licensing Rather Than Injunctions In Some Copyright Suits

Copyright

from the mercexchange-for-copyright? dept

You may remember that last year, before he died, JD Salinger sued the author of an unofficial “sequel” to The Catcher in the Rye, called Coming Through the Rye, which had already been published overseas, but was slated for publication in the US. Pretty much everyone agrees that this unofficial sequel isn’t particularly good, and it likely would have quickly faded into obscurity if Salinger hadn’t brought the lawsuit. Instead, however, a court banned the publication of the book, claiming it was copyright infringement.

This is massively troubling if you believe in the First Amendment. Just think about it for a second: this is a book that was published around the world, but is banned in the US — the supposed bastion of freedom of speech and expression.

The problem is that, despite the fact that copyright is supposed to recognize the difference between the idea and the expression (and only protect the specific expression), lately the courts have been blurring that distinction massively. If you honestly believe that copyright only protects the expression — as the courts have said — then someone creating a totally different expression should not… no, cannot be barred. But, the reality is that many people — including some judges — don’t seem to recognize the difference between an idea and an expression, and what copyright is supposed to cover.

Anyway, Esahc points us to the news that the lawsuit has been sent back to the district court by the appeals court, to determine whether or not the publication of the unauthorized sequel would cause any “harm” to the original publication. However, the reasoning here is a bit surprising. The court did not find any problems with the copyright infringement ruling — and, in fact, claimed that it thought Salinger (and his estate) would likely prevail on that point if the case was appealed.

Instead, the Appeals Court simply questioned whether or not the injunction was the proper response to the infringement, and told the lower court to apply the rules the Supreme Court set out in the MercExchange ruling four years ago. This is a bit surprising, since MercExchange focused on whether or not injunctions were the proper response in patent cases, not necessarily copyright — but it does appear that various courts have been trying to apply MercExchange to other types of cases. As such, the test that the court needs to decide is whether or not Salinger’s estate would suffer “irreparable harm,” if the publication of the unauthorized sequel went forward. That might be a very difficult standard to live up to, as I can’t see any harm at all caused by the sequel (in fact, I would imagine the opposite would occur, in that it would drive more interest in the older book).

So what might that mean? If the MercExchange patent rulings are any indication, if the courts find that the unauthorized sequel did infringe on copyrights, it could require the author and his publisher to pay a set fee to the Salinger estate, and still allow the publication — creating a de facto compulsory license. Actually, the book No Law, has argued that just such a result would actually bring copyright law much more in line with the First Amendment — allowing people to be free to express themselves, but requiring they pay up if they infringe. However, it would represent a pretty major shift in copyright law. You can read the full decision below — and here’s a press release from the publisher, hyping up the ruling much more than it deserves. The Salinger estate will almost certainly push for the injunction to be put back in place, and we’ll have to see what the court decides, before we know if this book ever gets published in the US. But just the fact that it’s saying the MercExchange rules should be used for copyright infringements is a big, big deal.

Filed Under: catcher in the rye, copyright, expression, idea, injunctions, jd salinger, mercexchange