A book you will never read

The American Library Association, along with other groups including booksellers and major publishers, make quite a big deal about Banned Books Week each year.  Each year they showcase books that were subject to challenges from people who do not believe those titles belong on the shelves of, usually, public and school libraries.

One of the books that is frequently challenged, especially in schools, and just as frequently defended on free speech grounds, is J.D. Salinger’s Catcher in the Rye; it is in the top twenty most challenged books on lists from the past two decades from ALA.  So there is a very heavy irony in the fact that Salinger himself and, after his death earlier this year, his estate have been successful in permanently banning a book that tried to update the story of Catcher.

I have told the ongoing story of this controversy with posts here, here and here.  Basically, Salinger presented a very weak case that the new book, called “Sixty Years Later; Coming through the Rye,” infringed the copyright in the original.  Amazingly, the District Court accepted the argument and granted a preliminary injunction.  There was a quick appeal, in which the American Library Association and many others joined.  The appeal cited procedural flaws in the preliminary injunction as well as the inadequate and incorrect copyright analysis, which clearly conflicts with the free speech values fair use is supposed to protect. The preliminary injunction was overturned on procedural grounds and sent back to the lower court.  Unfortunately, the appellate court punted on the free speech issue entirely, and agreed, in a very cursory fashion, with the copyright analysis from the district court; the ruling on that appeal is here, and there is a comment from Will Cross here.

Now the final chapter has played out, as the District Court has issued, by consent of both parties, a permanent injunction against the publication or distribution of Sixty Years Later.  Apparently to avoid a costly and drawn out trial, and faced with a deck stacked against them, the author and publisher decided to cut their losses and forgo publication in the U.S.

So this is a book you will never read, if you live in the US.  Reviewers have said that it is not very good, but you will not get to decide.  If you teach Catcher, you will not have the opportunity to have your classes look at this updating of the story and see if it rings true or how else it might turn out.  Here we have a banned book on a scale no individual challenging Harry Potter or Judy Blume at their public library could hope to achieve.  This is a book banned by the government, something we usually believe our Constitution will prevent.

If we have ever needed evidence that our copyright law has expanded beyond all rational bounds and now threatens our most fundamental national values, this case provides it.  The claim that the new work is infringing is based on a disregard of many fundamental copyright principles, include the distinction between idea and expression, as well as the proper application of fair use.  Most basic, however, is the failure to recognize what our courts have affirmed repeatedly, that fair use is a safeguard for free speech.  Where copyright most needs the fair use exception is when a rights holder tries to suppress critical or unwelcome speech from others by asserting copyright claims.  L. Ron Hubbard, Stephan James Joyce and the estate of Margaret Mitchell have all been unsuccessful when they tried to do that, but J.D. Salinger has enjoyed an unusual deference from our courts (another example of that deference can be found here).

So perhaps when Banned Books Week next comes around, we should recognize that Salinger uniquely represents both sides of the First Amendment coin — someone whose own works must still be defended at the same time that he and his heirs misuse the copyright law to undermine that very guarantee of free speech.