Confusion Over Copyright Injunctions And Other Restraints Of Speech

About a month ago, a New York District Court issued an order prohibiting the U.S. publication of 60 Years Later - Coming Through The Rye on the ground it represented a likely infringement of JD Salinger's copyrights in Catcher In The Rye. That decision has been appealed to the Second Circuit Court of Appeals, which is reviewing the case on an expedited basis. An injunction banning a book is a big deal. It's usually called a prior restraint, and it's usually highly suspect; the U.S. Supreme Court held publication of the Pentagon Papers could not be restrained despite the government's claim that national security would be jeopardized. In 60YL, it's Holden Caulfield who's in jeopardy. An aged Caulfield has escaped from a retirement home instead of a prep school, and faces an unlikely threat: Salinger himself. The conceit of 60YL is clever. It's written as if Salinger himself has ended his decades of seclusion to "finish what [he] started." Salinger is trying to kill Caulfield -- his "monster" -- "bringing him back just so [he] can kill him." But the plan goes awry, and Caulfield won't die. As Salinger and Caulfield play out their game of cat and mouse through a second adventure in New York, they urge us to ponder the relationship between an author and his work. The District Court's decision to enjoin publication of 60YL puts way more than just poor Holden in jeopardy. There are profoundly important free speech rights at stake any time a court bans publication of a book, and they include those of the public as well as the author and publisher. Those interests were simply ignored in the Court's analysis. This case does raise some difficult copyright issues. But whether the book is likely to be held an infringement at the conclusion of the case or not, courts have to consider and balance all of the important interests at stake before banning publication of a book -- or any expressive work. This Court just didn't do that. Part of the problem is the law about when courts may enjoin books and other expressive works has become confused. So today, we and our colleagues at Georgetown and the University of California filed an amicus brief on behalf of the American Library Association, the Association of Research Libraries, the Association of College and Research Libraries, The Organization for Transformative Works and the Right to Write Fund. Our brief explains the errors we believe the District Court made in issuing this injunction, and what we believe the proper standard should be. It urges the Second Circuit to adopt a more stringent test for issuing preliminary injunctions against books and other expressive works, and to reject the narrow interpretation of the fair use doctrine applied by the District Court. Read the brief here. UPDATE: Apparently, we are not alone in our concern. The New York Times and other press organizations have also submitted an amicus brief, which you can read here. Public Citizen has also submitted its own amicus brief, which is available here.

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