The Final Library: Google Funds Lessig in Case Against James Joyce’s Heir

"The works of a famous person, after they die, are more than the property of a grandchild,'' Olson said. ``They are the heritage of the larger world.''
David Olson, co-counsel of Lawrence Lessig, on the Joyce case.

[Since the Joyce case settled, I thought it might be worth reposting this one.]

Leading anti-copyright activist Professor Lawrence Lessig of Stanford University is suing the estate of James Joyce for asserting rights in certain papers of the Joyce estate, including the medical records of Joyce’s daughter Lucia Joyce, who is said to have suffered from schizophrenia.

This time Lessig’s patron is none other than Google (NASDAQ GS: GOOG). This should come as no surprise to anyone who has followed the quest of the Leviathan from Mountain View to own a database of all the world’s books—that is, books are first up—without paying a nickel to the authors and publishers of those books. This is the Google “Library Project” in which Google has talked universities—such as Stanford--with a vested interest in Google’s stock into letting Google scan all of the library’s holdings.

The source of Professor Lessig’s funding is important, because in the professor’s own words (to the great amusement of his audience) in one of his anti-copyright diatribes “We [i.e., tech companies] are bigger than them [the creative community].” I got a cold chill when I first heard that line knowing that it was only a matter of time before Professor Lessig and his fellow travelers on the Stanford team found a way to separate big tech companies from their money to fund lawsuits against the creative community, and now he’s done it. I had no idea that the professor’s lust extended to the medical records of schizophrenic children of recently deceased famous people, but live and learn.

Taken in the larger context of Google’s oligopolistic rise in search, one can see how it is to Google’s advantage to limit the rights that the creative community can assert against them, including the ability of celebrities (or private citizens) to keep their children’s medical records out of public view—forever. For after books comes every piece of information in the world. And if you think that’s paranoid, realize that the Library Project is inspired by The Final Encyclopedia by Gordon Dickson, a science fiction book about a database that was exactly that comprehensive. I know how sk8r boys love their sci fi, but sometimes sci fi is best left as just that--fiction.

Google’s lawyers want to take those rights away: “The works of a famous person, after they die, are more than the property of a grandchild….They are the heritage of the larger world.'' And can be placed in the Final Library, owned by Google. Note that the Google lawyers don’t just want to comply with the term of current copyright law (at a minimum, during the life of the author plus 70 years); they want to cut off rights upon the death of the author. But not Google’s “rights” to create their database, presumably.

This is a radical departure from international law as well as the law of the United States, and Google’s team may not have declared their intentions in their brief, but they said it to the press.

It would all sound whacky and weird if you didn’t understand that the “commons” in Professor Lessig’s “Creative Commons” is the public domain, and that Creative Commons is part of a larger group with the announced goal of trying to take intellectual property and other property rights away from their owners and “return” them to “the commons”. Such as trying to get a court to ignore the long-standing laws and traditions of the copyright and cut off rights upon an author’s death. Because when you hear one of the Creative Commons lawyers talking about “heritage of the larger world” that means “the commons” and that is bad for the professional creative community. And then, of course, all the public domain works have to be put somewhere in order to be found, and that somewhere is Google’s Final Library. And no one has suggested that copies of the Final Library will be available on a Creative Commons license.

Legal precedent is a series of analogies. In our common law system, a judge will look to what other judges have ruled before her, and will go through a process of a is to b as x is to y—which is why bad facts make bad law and why this case is important to the creative community.

The case is clearly about an artist’s or writer’s ability to leave their works to their heirs and feel that there’s at least a good chance that the value of those works will provide for your family into the future. Google’s lawyers have stated they want that right to end on your death.

But the case isn’t just about copyright; it is also about the right to be left alone and to keep your private life, or the private life of your children, from the view of scholars as well as the prying eyes of the press. And the prying eyeballs of Google, who probably wants to republish “excerpts” from Lucia Joyce’s medical records and sell advertising on the pages, a ghoulish thought but not beyond contemplation at all.

The facts leading up to the Joyce case are pretty simple stuff, and should sound familiar to anyone who’s ever had to deal with the estate of a famous person. Carol Shloss, a Stanford professor who is apparently a Joyce scholar of some note, was conducting serious research on a book about Lucia Joyce. This appears to be legitimate research not motivated by the desire to stand copyright on its head or anything like that, and I am prepared to accept the professor’s bona fides in this regard, absent evidence to the contrary. (It all happened at Stanford, after all, so you never know.)

The professor wanted to use certain materials that the Joyce estate believed it controlled, and that Joyce’s grandson didn’t want used. The grandson would appear to be a curmudgeonly type, and sent some threatening letters to the professor and her publisher saying some things he probably shouldn’t have said, and with which the Google team takes issue. Anyone who’s dealt with licensing rights from estates has been through this one, and very often the way to victory involves toadying up to heirs and other representatives. Not fun, but as Billy Wilder once said, “A producer is a dog with a script in his mouth.”

The professor published her work and decided to make certain assertions without benefit of supporting documents. It’s not clear to me from the history, but it appears that the professor may have viewed these documents in a library or other repository (including Lucia Joyce’s medical records for the treatment of her schizophrenia), thus verifying their existence and being able to take certain notes as to the contents of the documents upon which the book’s conclusions were based.

The professor then asked for permission to quote from the works and otherwise refer to the materials, not all of which may have been subject to copyright, strictly speaking. She got a blast from the heir, who wanted none of it which is about as shocking as gambling at Rick’s Café Américain. The professor then decided to publish anyway without the offending materials, and received bad reviews due to a lack of documentation (which one would have thought would have been rather predictable and must have been taken into account by the author). When she got bad reviews, she decided to sue the Joyce estate to force the estate to deliver to her the papers she wanted to answer her critics. She could have just walked away and said, it’s his property and I can’t have it if he doesn’t want to give me permission. But—enter Google and Professor Lessig.

Lawsuits are not usually the way to success in these matters; asking nicely often works best. Of course, asking nicely is not something that arrogant tech companies, elitist universities or cult figure professors do very well, particularly when they want to make new law.

So the question is does the prof want to make a deal or help Lessig and Google make a rule? Or teach that Steven Joyce not to challenge his betters?

So what rule will come out of this case? Will the result be the Google rule as enunciated by Google attorney Olson? If you die famous, you lose all rights in your work on your death? The Berne-be-damned rule? Will the rule be that if a professor is interested in studying intensely personal aspects of the lives of the children of “famous people”, including their mental health and their medical records, is it open season? Remember, Joyce died in 1941, so this is hardly ancient history. It’s not like we are talking about the personal life of Alexander the Great or even Harry Houdini.

Or will the rule be that upon the death of a famous person, all their work and personal papers go into the public domain or the “commons”? Will the rule benefit only professors, or will the New York Post be able to use any property that it likes as long as the subject is dead? Who will we have to thank when the children of famous people are humiliated by having their medical records laid bare to “researchers” in the tabloid press?

It should not be lost on the creative community that Google is being sued by the Authors Guild over the Google Books Library Project—the Final Library. Stanford University, of course, owns a piece of Google, and not surprisingly has taken a leading role in helping to facilitate the Google Final Library Project. The university even has made statements against the Authors Guild in the litigation: “Stanford is saddened by various publishers’ and the Author’s Guild decision to file suit against Google in an effort to curtail the Google Books Library Project – a project that has the potential of providing an invaluable social good.” Clearly, neither Google nor Stanford has much truck with those pesky authors, a fact that parents of future creative writers or other members of the creative community might keep in mind. I searched (on Google) for other instances where a university has issued a public statement taking sides in a litigation that it is not a party to (yet), but was unable to find any. What a difference $100 million or so can make.

Professor Lessig himself recently engaged in a contentious debate with Random House’s Richard Sarnoff about his benefactor’s Final Library Project lawsuit that is enlightening. In response to Sarnoff’s position that Google is merely required to get permission (as did Amazon), we got some classic Lessig: “You are publishers of printed versions of books. Why should you be controlling the digital destiny of American culture or world history?” Now we understand why Professor Lessig never saw a problem with rampant “file sharing”—in the Lessig reality, even during their lives, artists just own the physical versions of their records. The “commons” owns the digital copies! And what is more empowering to “the commons” than p2p “file sharing”? And of course, Google gets to put all the digital copies in the Final Library—which Google will own. For free!! It’s free!! It’s all free!! That explains it! Oh, he’s so smart! How did we poor little Epsilons ever get along without him?

If you read the reports of the Friends of the Commons (parent group of Professor Lessig’s Creative Commons Corporation), you will find the stated goal of Friends of the Commons is to eliminate private property rights to the fullest extent possible, not just in intellectual property, but in all aspects of life. I think it would be fair to characterize the philosophy of the group as Utopian Socialist, with their roots in the 19th century version of that movement. Creative Commons is the intellectual property wing of the group, or, more accurately, the anti-intellectual property wing. This helps to explain Professor Lessig’s continued quest to weaken copyright, including his attempt in the Kahle case (with lead plaintiff being tech millionaire Brewster Kahle) to essentially throw out the 1976 Copyright Act, as well as his political allies and successes in countries outside the United States such as France and Brazil. “Creative Commons” is such a pleasant sounding name, sort of like “collateral damage”. In fairness, there is probably no actual ownership or affiliation among these groups in a formal sense, but as the State of the Commons report clearly shows, they act in concert.

It seems every time you turn your back, Lessig’s filing another lawsuit questioning the rights of authors. Of course, the professor will tell you he’s attacking Disney and he loves the little artists--loves them so much he wants to take away their rights as soon as they are unable to defend themselves, i.e., when they’re dead. Unfortunately, poor Professor Shloss is caught up in Lessig’s web. One can almost hear the wheels turning in Professor Lessig’s nimble mind when hearing the facts of her case.

I’m reminded of Sylvia Beach’s account of how James Joyce himself manipulated her into publishing Ulysses (first publisher of Ulysses and owner of the legendary Parisian bookstore, Shakespeare & Co.). I hope for Professor Shloss’ sake the same kind of thing isn’t happening to her. If Professor Lessig and Google succeed in making good on the public statement of attorney Olson, Shloss’ name will not be a popular one in the circles of “famous people” and their families, not to mention book publishers, authors, songwriters, recording artists and all other members of the creative community.

It’s far more likely that if Lessig and Google have any success, it will be with the 9th Circuit followed by Lessig’s now-customary loss in the Supreme Court. Either way, I’m reminded of a quotation attributed to Joyce speaking of Ulysses: “I've put in so many enigmas and puzzles that it will keep the professors busy for centuries arguing over what I meant, and that's the only way of insuring one's immortality.” Let’s hope the author—and the creative community--gets the last laugh on Professor Lessig and Google. At least this time.

Because what you really have to ask yourself is why is Google so intent on undermining the rights of authors and other non-tech creators? The Final Library won’t stop with books no matter what the outcome of the Joyce case. Given the interest at Google in “Google Video”, film may be next, music after that. I imagine it must be irksome to Google to have people merely searching all the world’s information when one could own all the world’s information in the Final Library. Much is made of Google's altruism--if they are so altruistic, then let them make a free copy of the Final Library available to all comers, including Yahoo.

And if you think Apple DRM gave the French the willies, wait till they find out that Google literally wants to own their culture.

So to reprise Professor Lessig: They’re bigger than us.

And PS: Don't be evil...to Google. Because they'll burn you down if you are.

Copyright 2006 Christian L. Castle, All Rights Reserved.