Joyce, Shloss and the freedom of scholars

Tim Cavanaugh of the LA Times had an interesting round up (way back ion early June) of the Carol Shloss v Stephen Joyce case.

"On Friday, a San Jose federal judge awarded attorney fees to a Stanford University English professor whose suit against the estate of James Joyce was settled recently. The awarding of fees in an out-of-court settlement, while not typical, is not unprecedented; and since settled cases don't establish legal precedent, this case is unlikely to become required reading at any law schools. But Carol Loeb Shloss' suit against the Joyce estate sheds light on an ironic, and maybe inevitable, trend in intellectual property: As copyright becomes harder to defend, many copyright holders are becoming less realistic about the limitations of their ownership.

Shloss' suit, which was launched by the Stanford Law School's Fair Use Project and argued by intellectual property expert Lawrence Lessig, charged the Joyce estate, (consisting of Stephen James Joyce, the author's grandson and sole living heir, and Sean Sweeney, a trustee), with unreasonably preventing Shloss from making fair use of the author's published works or quoting from Joyce family letters for her biography Lucia Joyce: To Dance In the Wake. It also charged the estate with a variety of copyright "misuses"—trying to prevent Shloss from using materials (such as medical records) whose copyright the estate did not own, intimidating the owners of the physical papers on which its copyrighted material is written and repeatedly refusing reasonable fair-use requests from others. It also took some steps to chip away at the presumed copyright on some of Joyce's published works...

Can we learn anything from this trip through the deep weeds of intellectual property? First, there may be a point here about the problems of endless copyright protection. Joyce's last novel was published in 1939, and much of this wrangling hinges on books that were written before many of our parents were born. If it's absurd to be arguing about these ancient works, how strange will it be in some futuristic, Jetsons-worthy era when somebody wants to do a smellivision version of SpongBob Sqarepants but the descendants of Viacom won't let that happen?

It also may be the case that estates are rarely the best or smartest stewards of literary works. Stephen Joyce, whatever his enemies in the Joyce scholarly community may think of him, is honestly committed to maintaining his grandfather's legacy. That doesn't mean he's especially smart in his efforts, which essentially amount to policing the culture for work he considers substandard. Adaptations and studies may be good, bad or indifferent (I have argued that almost all Joyce adaptations have been pretty lousy), but common sense dictates that even a sub-par adaptation generates more reader interest in the original work."