Info/Law

The Stanford Center for Internet and Society (CIS) has announced a settlement in its fair use lawsuit on behalf of James Joyce scholar Carol Shloss against the Joyce estate (press release here). The author’s heirs were threatening a copyright infringement lawsuit as a means of forcing Shloss to delete large portions of the evidence in her book about the tragic story of James Joyce’s daughter Lucia. With the backing of the pro bono attorneys at CIS, she filed a declaratory judgment action — basically, the legal mechanism for calling the bluff of someone who threatens to sue you — and this settlement appears to grant Shloss everything she wanted.

This is great news for Shloss and for all Joyce scholars — the author’s estate has been notoriously litigious in the past. But I have to admit disappointment as well. This case was exciting precisely because it seemed like a good prospect to get some binding case law on the books about the scope of fair use for historians and literary scholars. A settlement doesn’t count as “the law” in the same way at all. (I have noted before the same fear about the prospect that Google would settle cases about indexing as fair use). This is the famous ethical quandary of all lawyers involved in “impact litigation” — you are using one person’s problems as a vehicle to change the law, but your first and greatest duty is to the client. Often, if you can get a great settlement, then you have to forego the larger-scale legal change you’d sought.

CIS Director Larry Lessig promises that they will be involved in more such “impact” cases in the near future (and they just announced their great project with documentary filmmakers too). So I am hopeful. But it is back to the drawing board for now.

[UPDATE: Guest blogger Fred Yen and commenter Michael Risch have some of the same reactions at Concurring Opinions.]

Filed under: Copyright, Court Decisions, Education & Copyright, Scholarship, Search Engines