Whatever one might think about the continuing utility of meat space libraries and tangible newspapers, these entities sure write decent amicus briefs. NYT, AP, Tribune, Gannett, along with the American Library Association, have weighed in on Fredrik Colting's appeal of Judge Batts' order banning his book, 60 Years Later: Coming Through the Rye, which uses J.D. Salinger's Catcher in the Rye as a point of departure.
The amicus briefs are great reading - you can download them both here - if you enjoy watching a judge get spanked in a figurative, verbose and decidedly legalistic way. "What was Judge Batts thinking?" is all you can wonder when you finish all 89 pages of the two briefs. "Boy, she really messed up the law on this one," you say, rolling your eyes.
The persuasive and passionate fervor of these amicus briefs may relate to the wellsprings of empathy their authors ought to have for Colting - depths of personal engagement analagous to Thurgood Marshall's personal connection to Brown v. Board, or Sarah Weddington's personal stake in Roe v. Wade - or the rogue's sympathy for the hanged man.
Quite simply, the differences between writing a legal brief and an unauthorized sequel (or parody, or whatever Colting's work is) are less significant than one might imagine. Both use pre-existing works - in Colting's case, Catcher; in the attorneys' cases, caselaw - from which they borrow, to a greater or lesser extent, in order to fashion a story line that positions the original in the service of the author's agenda. What else, in the end, is a legal brief, but a pastiche, a collage, a derivative work?
Colting's misfortune is that his original work is protected by copyright law; the attorneys, on the other hand, owe their children's college tuition to the exemption from copyright of caselaw - and other works written by the US government. But does that circumstance change the moral valence of the activity? Colting engaged in fundamentally the identical process as the attorneys who wrote the amicus briefs - just using a different source material. Does that make Colting bad? (And before you interject that anything lawyers do can't be "good," think whether Judge Batts' decision should've been different - as it would have had to have been - if Colting had parodied a work that wasn't protected by copyright - 60 Years Later: Another Midsummer Night's Dream, for example.)
The process of active engagement with texts - arguing with them, bowlderizing them, cutting them up and reconfiguring them, reimagining them, twisting their meaning or amplifying their subtext - is a side-effect of being a thinking animal. The law, in its wisdom, recognizes such behavior as "fair use." Limiting the texts with which we can engage as thinking beings is both unwise and unfair - it's also impractical.
Of course, lack of awareness can stymie any insight, and active engagement with texts doesn't necessarily put one on the side of the angels on this issue: after all, J.D. Salinger's attorneys will use the same process to write an opposing brief. Let's hope the Second Circuit Court of Appeals doesn't sympathize with the devil.
The amicus briefs are great reading - you can download them both here - if you enjoy watching a judge get spanked in a figurative, verbose and decidedly legalistic way. "What was Judge Batts thinking?" is all you can wonder when you finish all 89 pages of the two briefs. "Boy, she really messed up the law on this one," you say, rolling your eyes.
The persuasive and passionate fervor of these amicus briefs may relate to the wellsprings of empathy their authors ought to have for Colting - depths of personal engagement analagous to Thurgood Marshall's personal connection to Brown v. Board, or Sarah Weddington's personal stake in Roe v. Wade - or the rogue's sympathy for the hanged man.
Quite simply, the differences between writing a legal brief and an unauthorized sequel (or parody, or whatever Colting's work is) are less significant than one might imagine. Both use pre-existing works - in Colting's case, Catcher; in the attorneys' cases, caselaw - from which they borrow, to a greater or lesser extent, in order to fashion a story line that positions the original in the service of the author's agenda. What else, in the end, is a legal brief, but a pastiche, a collage, a derivative work?
Colting's misfortune is that his original work is protected by copyright law; the attorneys, on the other hand, owe their children's college tuition to the exemption from copyright of caselaw - and other works written by the US government. But does that circumstance change the moral valence of the activity? Colting engaged in fundamentally the identical process as the attorneys who wrote the amicus briefs - just using a different source material. Does that make Colting bad? (And before you interject that anything lawyers do can't be "good," think whether Judge Batts' decision should've been different - as it would have had to have been - if Colting had parodied a work that wasn't protected by copyright - 60 Years Later: Another Midsummer Night's Dream, for example.)
The process of active engagement with texts - arguing with them, bowlderizing them, cutting them up and reconfiguring them, reimagining them, twisting their meaning or amplifying their subtext - is a side-effect of being a thinking animal. The law, in its wisdom, recognizes such behavior as "fair use." Limiting the texts with which we can engage as thinking beings is both unwise and unfair - it's also impractical.
Of course, lack of awareness can stymie any insight, and active engagement with texts doesn't necessarily put one on the side of the angels on this issue: after all, J.D. Salinger's attorneys will use the same process to write an opposing brief. Let's hope the Second Circuit Court of Appeals doesn't sympathize with the devil.
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