I’ve just finished reading Robert Spoo’s book “Without Copyrights,” an academic look at the history of American publishing in the 19th and early 20th centuries, when American copyright first did not apply at all to works first published abroad, and later applied only with strict manufacturing and notice requirements. The first half of the book documents the interesting practice of copyright-like trade courtesy among publishers, through which those businesses kept the costs of books relatively stable, paid authors through voluntary payments, and internally punished defectors from the system.
But the second half was even more interesting. It covers the suit James Joyce filed against Samuel Roth for his unauthorized publication of Ulysses in the US, and the suit Joyce and Random House fought to publish and unexpurgated copy of the book, which was then considered obscene. That first case, Joyce v. Roth, was especially salient in light of the recent copyright case Garcia v. Google, the “Innocence of Muslims” case.
Ulysses was one of the books affected by early 20th century copyright law’s manufacturing requirements. Its controversial contents prevented an American publication simultaneous with its European debut, throwing the work quickly into the US public domain. ((It’s a bit more complicated than that, especially owing to a serialized American version, but I think the broad strokes suffice here.)) As a result, Joyce had no American copyright claim to go after Roth with.
Instead of copyright then, Joyce v. Roth alleged violations of a New York state privacy law, with Joyce claiming that Roth had misappropriated his name and image in order to sell magazines. Essentially, Joyce couldn’t object to Roth reprinting the text of Ulysses (expurgated or otherwise), but could try to refuse him the right to put Joyce’s name on the cover.
Roth was fighting a lot of legal battles at the time, and ultimately settled before the case was decided on its merits. It seems somewhat doubtful Joyce could’ve won, not least because the statute he sued under had a specific exemption for putting authors’ names on books. So: Joyce used a flimsy privacy claim to prevent the dissemination by a bad actor ((Well, some people really didn’t like Roth. Neither Spoo nor Ezra Pound nor this author are willing to go very far in demonizing him.)) of an objectionable work.
Compare that to Garcia v. Google, wherein Cindy Lee Garcia is using an (extremely) flimsy copyright claim towards the same ends. She’s trying to prevent the dissemination by a bad actor, here Nakoula Basseley Nakoula, of an objectionable work, “Innocence of Muslims.” Joyce’s was being tricky with privacy law in order to enforce a copyright concern; Garcia is doing the same with copyright law to enforce a privacy concern.
In both cases, it’s likely that many observers identify and sympathize with the plaintiff—but that doesn’t grant license to contort the law to serve a good ends. Had Joyce won outright, the precedent could have had all sorts of unintended consequences: it could have jeopardized other publishers of the public domain, created incentives for improper attribution, and had chilling effects on literary criticism. The same applies for Garcia, should the Ninth Circuit’s position remain in place.
“Without Copyrights,” like 2009’s “Piracy” by Adrian Johns, is a pretty incredible reminder of how closely current debates around tech policy—copyright, free speech, privacy, and more—mirror those from a century or more ago.