Litigation and . . . time

In 2005 I learned about a class action lawsuit against Google through a writers’ organization. This one is different from the current lawsuit against Google for unauthorized digitizing of the world’s library. The one I’m talking about here is Literary Works in Electronic Databases Copyright Litigation. I received a notice yesterday (actually three notices by mail) telling me that I had filed three claims, two were disallowed, but the third was being processed. I filed my claims within the deadline and sent paper backups. In 2005. In the interim I heard not a word.

I remember filling out some of the paper work for this claim. Even more vividly I remember going through my files and listing every piece of published writing done within a certain period, and being very surprised at the number. I hadn’t realized I’d been so prolific in writing nonfiction on a variety of topics. A lot of the works were book reviews, and I have no idea how those will fare in this claim. I also recall receiving an email that certain works wouldn’t be allowed because they hadn’t been copyrighted. I sent them copies of the copyright registrations by registered mail.

This is the second class action lawsuit that I have found myself benefiting from. A few years after I published an article in Clues: A Journal of Detection (1996), I received a letter stating that the university had sold the rights to articles published in the journal without receiving permission; a group of writers (as I recall) had sued, and here was my piece of the settlement. In the envelope was a check for $750.

I don’t know what the settlement in this current lawsuit will be, but I do know that some of it will depend on my registration of copyright with the Library of Congress. While it is true that today a writer owns the copyright of a work the minute it is created, it is also true that those who register the copyright with the Library of Congress will collect more in the way of monetary damages than those who do not register their copyright.

I did nothing to bring about the settlement with Clues. I filed a lot of paper for the Database Litigation but I had nothing to do with filing the lawsuit and following up. I occasionally receive a request for information on whether or not I flew a certain airlines within a certain period, and after that I might receive a small check as part of a settlement. I’ve occasionally received a voucher for a small amount of money.

After the Snowden and NSA debacle, no one should be surprised that someone somewhere out there is misusing someone else’s information or work but it is still a surprise to me—a pleasant surprise—to find that others are fighting back, even as I wander about in ignorance, and that I have been included in the settlement.

And as a result, I will continue to register my copyrights even when others tell me it’s a waste of money. And I will also continue to pay my dues to the various writers’ groups who keep track of these things like lawsuits and let their members know that it’s now time to sharpen those fingernails and get clacking on those keys, and file those claims.

I don’t know if I’ll get much in the way of compensation, but I’m looking forward to getting a check in the next . . . few years.

The litigation is in the United States District Court for the Southern District of New York, in re Literary Works in Electronic Databases Copyright Litigation, M.D.L. No. 1379.

Just how much of your book do you own?

I have been watching the Google lawsuit and settlement talks play out over the years, and with each announcement, mostly in favor of Google, I went from anger and disbelief, to confusion, and now to a glimmer of understanding of how writers could find themselves not quite owning their own work. I stumbled across this insight while reading Robert Spoo's book on how copyright protections (or the lack of them) affected the introduction of modernist literature in the United States, with a focus on Ezra Pound and James Joyce. 

Without Copyrights: Piracy, Publishing, and the Public Domain, by Robert Spoo (Oxford University Press, 2013)

I came across this book by accident. When I picked it up in a local library after being drawn in by the title I expected something that would seem relevant to me as a writer grappling with the changing environment for commercially and self-published writers. The challenges facing writers opposed to Google’s digital copying program are nearly overwhelming, and I was stumped to understand why courts found it so easy to rule against writers and in favor of Google and others. I still don’t understand completely, but I have a better understanding of how we got where we are and why Google has been successful so far.

Robert Spoo, well recognized in his chosen field of copyright law and literature, is interested in how copyright laws, or the lack of them as we understand them today, interacted with modernism in literature. He takes for his example the writer James Joyce, and his attempts to have an unexpurgated Ulysses published in the United States.

Spoo’s history of copyright in this country is an eye-opener. Writers often talk about books in the public domain as though they had drifted into this ocean as a result of neglect or the passage of time or creation by the US or state government. But the public domain was in fact created by Congress through earlier copyright laws to ensure that those involved in the book business in this country had work here and didn’t face competition from outside the country. The only books that received copyright in this country were those that were printed and bound here, manufactured here; all others, no matter where they were published or by whom, were in the public domain. Once in the public domain, which occurred within a very short time after publication elsewhere, the book was fair game for anyone who wanted to publish it here. Writers who published abroad could gain a copyright here if they met stringent requirements, but otherwise the copyright failed in the US. This was the case well into the twentieth century.

Publishers who wanted to publish work by someone who had already published it abroad faced the Wild West of publishing for decades. In response to this chaotic world they developed something called the “courtesy of the trade,” or “trade courtesy.” This phrase referred to a gentlemanly agreement among the larger, more established publishing houses to let the first to claim the work to have it. If Publisher X announced through a magazine ad or in some other way that he was going to publish the work of a popular British poet, his colleagues left him to it. The trade courtesy was an understanding among publishers to not poach on others’ writers from their publishers, and to not try to undercut other publishers with cheap reprints. None of this was legally binding, and no one could stop another publisher who ignored the unspoken rules.

A publisher who ignored the rules was called a pirate. The term is not accurate because the publisher operating outside the rules of trade courtesy wasn’t breaking any law, but some felt so strongly against what he (it seems mostly a he) was doing that the term was used freely. Publishers who wanted to get ahead published anything that wasn’t protected by copyright, which meant almost everything published overseas. One of the more famous of these publishers was Samuel Roth, who hoped to publish James Joyce’s work, especially Ulysses.

A publisher who published with no regard to the gentlemanly agreements of others faced no legal repercussions but plenty of social costs. He was shunned and subjected to unrelenting negative gossip and boycotting, others published cheap work to undercut his prices, and writers might sue to get any monies they could extract. Public opprobrium could drive a publisher out of business.

Into this topsy turvy world came Ezra Pound and James Joyce. Joyce bitterly resented anyone taking his book and publishing an altered version, one cleaned up for the censors. Pound believed in disseminating literature, and in the end chose that over Joyce’s right to control his publishing in its entirety. When we think of Joyce’s lawsuit to get Ulysses into the US, we think he was challenging the prudish laws of the US. But in fact, Joyce first sued Roth for using his name for advertising without his permission. Joyce sued for damages he felt he must have suffered by not having control of his work, but in the end Joyce and Roth settled by agreeing to a consent decree (dated December 27, 1928). But even this had a very limited effect. This decree, according to the author, and despite Joyce’s grandiose claims, “has not been cited by a single court in a reported case” (p. 224). Joyce thought this decision would give authors their natural moral rights in the ownership of their labor, echoing Locke and European attitudes, but US courts and legislation have never gone this far (p. 225).

The second step in getting Ulysses safely into the US, where Joyce’s preferred publisher, Bennett Cert, could publish it, was to have it seized by Customs. Once this happened, the book was subject to the Tariff Act of 1930, and the Cutting amendment. This amendment made the object confiscated the defendant in a case, and forced the government itself to defend its actions. The sender and the receiver of the item in question, in this case Ulysses, were not part of the case. During Prohibition, according to Spoo, lawsuits were often filed against the truck carrying bootlegged liquor and the like.

Ulysses was confiscated, the case went to trial, and Judge Woolsey decided in favor of the book, in 1933. The book was free to enter the US, but it was still without copyright. Joyce’s great work was now subject to the trade courtesy practices that he and others abhorred, but he had no choice.

This is a story of stunning twists and turns and surprises in getting Ulysses published in the US, not the least of which was Joyce’s attitude towards his lawyers’ bills (he refused to pay them).

Equally surprising to me as a writer is that copyright as I have come to understand it only became law in 1976. Legislators have continued to tinker with copyright law so that even now the public domain is occasionally given a great book and deprived of another for a few years. It is a patently crazy system. The US didn’t sign the Berne Convention until 1989, when the US finally agreed to recognize foreign copyrights and afford works so protected overseas the same protection in the US. There is more, but by now you should have the idea that the history of copyrights in the US is anything but tidy and linear.

The text is dense, but the writing is free of academic jargon, in some cases delightful. The author makes every effort to explain the legal niceties in simple, clear language. I learned more about Ezra Pound and James Joyce in this book than I ever did in college English literature classes. Highly recommended.

All you need is . . . art

This is the time of year when school committees put together their budgets for the coming year. That means this is the time of year when some schools look for places to cut, to balance the increases that will be made elsewhere. Every year I cringe as I hear about the art and music classes that will be lost or severely reduced. This is, to my way of thinking, irrational.

It is customary for people today to talk about art and music classes as the one place where students can have a respite from academic work or to compensate for not making sports teams. These may be real concerns and valid reasons, but I think art and music programs are important for other others.

I have long believed that putting the focus on art in schools is one way to ensure that students get a real education. I’m not talking about the well-rounded personality, which reduces art to something like finishing school. I’m talking about an education that goes much deeper, into a way of living and thinking and being. What I say here is only an abbreviated discussion of my thinking but I hope it is enough.

First, anyone who focuses on art must learn to listen, to listen to himself or herself within first and foremost. And this young artist must learn to listen to others who talk about what works and what doesn’t, who speak from experiences that are similar but not the same. Can you mix these solvents together and get this color? Can you add dirt to an acrylic? Can you play the keys without weight? Can you use this tool to create this effect? Can a man really say this in these words? You learn to listen well, for meaning, for nuance, for possibility. As part of this listening, the young artist also learns to look and to listen, to look at art with an intensity and clarity that doesn’t come from memorizing names of paintings and their creators; or to listen to a piece of music and recognize patterns and nuances within those patterns, and grasp the composer’s intent.

Second, if you want to do something and are not sure how to go about it, you look for answers. You read because you want to know, not because someone is standing over you telling you that you have to read this or that book. You read with intent or purpose, and you read to understand. You want to know how this craftsperson managed to get this effect. How did that guy make this paper so smooth and rough at the same time? What equipment did he create or modify? And how does it work? And if you read the instructions half a dozen times and you still don’t understand them, you have enough sense by now to guess that perhaps the manual wasn’t written very well. You read and discern. If you’re building large sculptures, you learn more math and algebra and more. Artists in this realm learn like engineers.

I think of the writers I have known who read so carefully and closely that they come away understanding Toni Morrison or Charles Dickens better than any academic because they want to understand how the writer did what she or he did. They read to grasp both meaning and technique. Some discover the beauties of handcrafting books, and they keep alive skills that would otherwise fade away. Musicians understand the craftsmanship that goes into making a good musical instrument, and many can make their own and have.

Third, once you have created something beautiful or stimulating or challenging, you will send it out into the world. You become a business person, and you learn about marketing, sales, promotion, setting up and running a business, negotiating and managing conflicting demands. You learn about taxes, managing data on a computer, budgets, and more.

Fourth, those who learn to do something well and in depth carry a deep appreciation of what it means to accomplish something. They can look at anything else that takes time and effort to create and understand some of what goes into it because they have already done the same in their own area. In the study of literature, this is called the philological approach, focusing on knowing one work completely and thoroughly.

It is by learning to create something, to move from nothing to something, that we learn how to live in the world, how to respect tiny details and avoid shortcuts, how to have patience to finish something when we’re tired and would rather quit. We learn that to make something is to contribute, and that only by making do we grow and find more to offer. But we also learn to listen within, to live with self-knowledge and self-respect, immune to the false world that swirls around us.