Stanford Center for Internet and Society

Here is an editorial from today's L.A. Times, entitled Portrait of the Old Man as a Copyright Miser: How a Lawsuit About Some Old Books and Letters Sheds Light on 21st Century I.P. Madness.

To quote Tim Cavanaugh, its author:

"New works alter, and deepen, our understanding of their sources. This is something for copyright holders to keep in mind in the era of infinite mashups and YouTube parodies. The love of a creative work is like any other kind of love: If you try too hard to control it, it can only die."

As one of Shloss's very proud lawyers, I couldn't have said it better myself.

Most who have followed Professor Carol Shloss's lawsuit against the Estate of James Joyce and its Trustees know she prevailed completely when the Estate agreed to let her publish the materials at issue free from copyright infringement liability. Now the Court has confirmed what we all knew to be true. In an order issued today, the Court held that Shloss is the prevailing party in her lawsuit and is therefore entitled to recover attorneys' fees from the Estate. Read the order here.

The amount of fees to be awarded is still to be determined, but we hope this demonstrates that inadequate respect for fair use's critical role in scholarly inquiry and free expression can have substantial and serious consequences.

Having obtained what she sought in her complaint (the right to publish her Electronic Supplement on the internet) and more (the right to publish it in print, too), Professor Carol Shloss has asked the Court to order the Estate to pay her attorneys' fees based on the unsubstantiated positions the Estate took for years, only to back down once finally challenged. Read Shloss's motion for attorneys' fees here.

Last June we sued the Estate of James Joyce to establish the right of Stanford Professor Carol Shloss to use copyrighted materials in connection with her scholarly biography of Lucia Joyce. Shloss suffered more than ten years of threats and intimidation by Stephen James Joyce, who purported to prohibit her from quoting from anything that James or Lucia Joyce ever wrote for any purpose.

Plaintiff Carol Loeb Shloss (“Plaintiff”) sought a declaratory judgment that the use of written works in an electronic supplement to Plaintiff’s book Lucia Joyce: To Dance in the Wake would not infringe the copyrights of Defendants Seán Sweeney and the Estate of James Joyce (“Defendants”). Defendants filed a motion to dismiss the declaratory judgment based on several grounds. The Court found that Plaintiff demonstrated the existence of an actual “case or controversy” and interpreted Defendants’ unwillingness to extend a covenant not to sue based on the amended electronic supplement as a continuing threat of litigation. The Court denied Defendants’ motion to strike three of Plaintiff’s claims. First, and most significantly, the Court denied the motion to strike Plaintiff’s copyright misuse affirmative defense, holding that the standard for copyright misuse merely requires “a nexus between the copyright holder’s actions and the public policy embedded in the grant of a copyright.” In applying this standard, the Court found that Plaintiff’s allegations demonstrated such a nexus between Defendants’ actions and their negative effect on creative expression. Second, the Court denied Defendants’ motion to strike Plaintiff’s claims that the 1922 Paris edition of Ulysses is in the public domain. Third, the Court denied Defendants’ motion to strike allegations of Defendants’ unclean hands.

Schloss v. Estate of Joyce.

We won an important victory over the Estate of James Joyce's motion to dismiss last week in Shloss v. Estate of James Joyce. The Estate had moved to dismiss our entire case, arguing that Professor Shloss could not sue for a declaratory judgment of her fair use right to use quotations from Joyce family members on her Website because the Estate had not made threats sufficient to cause Professor Shloss reasonable apprehension that the Estate would sue her if she published her Website.

In a decisive 20-page opinion, the Court found that Shloss had alleged ample reasons to fear being sued by the Estate regarding her Website.

I attended the motion to dismiss hearing in the Shloss v. Estate of Joyce case on Wednesday morning. Here a photo of Professor Shloss and two people from the legal team, David Olson (CIS Fellow) and Tony Falzone (Exec. Dir. of the Fair Use Project). (A couple more photos are available in my flickr set.)

On Friday, December 15, we filed Carol Shloss's opposition to the Joyce Estate's motion to dismiss her claims for lack of subject matter jurisdiction. In this opposition, the Estate's ten years of threats agains Shloss and her publisher are set forth, and the Estate's suggestion that she had nothing to fear is answered. Read it here.

This post is to update everyone on the progress of the litigation between Carol Shloss and the Estate of the late literary genius, James Joyce. As this Website’s predecessor likely revealed, this case focuses on the extent the fsir use doctrine provides protections to academics to quote from both published and unpublished works in their scholarly endeavors, and how far a copyright owner can go in prohibiting that use to protect a families’ privacy.