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Another Legal Victory Keeps Sherlock Holmes In The Public Domain

5 August 2014

From io9:

Last year, a federal judge ruled that Sherlock Holmes and Dr. Watson are no longer covered by U.S. copyright law. But, the Conan Doyle Estate continued its litigation — and today, another federal judge issued a blistering statement, saying that the estate might also be violating anti-trust laws.

“The Case of the Greedy Estate” is a story in three parts. First, in 2013, editor Leslie Klinger filed a complaint against the Conan Doyle Estate regarding an anthology of new Sherlock Holmes stories. The estate had threatened to block sales of the anthology unless it received a licensing fee for the use of elements of Sir Arthur Conan Doyle’s original stories.

. . . .

Then, in Part II of our saga, 7th Circuit Judge Richard Posner rejected an appeal made by the estate, concluding in June 2014 that, “The spectre of perpetual, or at least nearly perpetual, copyright … looms, once one realizes that the Doyle estate is seeking 135 years (1887–2022) of copyright protection for the character of Sherlock Holmes as depicted in the first Sherlock Holmes story.”

. . . .

And then came the real zinger: that the Doyle estate could be in violation of U.S. anti-trust laws:

We note finally that the estate was playing with fire in asking Amazon and other booksellers to cooperate with it in enforcing its nonexistent copyright claims against Klinger. For it was enlisting those sellers in a boycott of a competitor of the estate, and boycotts of competitors violate the anti-trust laws. The usual boycott is of a purchaser by his suppliers, induced by a competitor of the purchaser in order to eliminate competition from that purchaser…..This case is different, in its facts but not in economic substance or legal relevance, because the boycotters enlisted by the Doyle estate were buyers from the victim, rather than sellers to it. But functionally they were suppliers—suppliers of essential distribution services to Klinger.

“It’s time the estate, in its own self-interest, changed its business model,” concluded Posner.

Link to the rest at io9 and thanks to Scott for the tip.

Copyright, Legal Stuff

12 Comments to “Another Legal Victory Keeps Sherlock Holmes In The Public Domain”

  1. “For it was enlisting those sellers in a boycott of a competitor of the estate, and boycotts of competitors violate the anti-trust laws. …. functionally they [Amazon, et al] were suppliers—suppliers of essential distribution services to Klinger.”

    Hmmmmm, just extrapolating this out a little (am probably wrong,) but am thinking of this from an Indie slant. If publishers have colluded with eBook distributors to keep indies out, then does that mean that they would be guilty of the same type of anti-trust actions? Preventing us from reaching readers. I know, I know, this is a slippery slope, and retailers have the right to carry whatever products they want.

    However, if Trad Publishers flexed their muscle toward ebook distributors (I’m thinking of distribution to libraries, Overdrive, etc.) and asked them to block/keep us out, then using the same logic as mentioned above, this would theoretically violate anti-trust laws, right?
    ___________

    ps I believe I heard that Overdrive lets Indies into their system now, but we’re relegated to a sub-folder of a sub-folder that is almost impossible to search even when you have the correct title…

    • That’s if you go through Smashwords (or the scam company which shall not be named, but is owned by Randy Penguin). With some of the other ebook destributers (I believe including ebookpartnership.com), you can get in using your own publisher name if you have a certain number of titles. They have let indies in for quite a while now, but they need to look like a small press. Not the best solution, I know, but it will still bypass their self-pub ghetto.

  2. The judge also called this conduct of demanding a lower license fee with an implied threat of heavy legal bills if they don’t pay up “extortionary.” I wonder if the same logic holds for the music industry lawsuits from a while back that charged $150k per song but would settle for the low, low price of $3k total? Sounds like the exact same thing to me. The legal threat so far in excess of the settlement that very few would dare to defend themselves or challenge the law in question. I’m glad to see a judge side with an individual having the right to challenge the validity of the action without unjust penalty for even daring to try.

  3. Dan, it depends on whether the music in question was published before 1923.

    1923 is a bright blistering line, topped with razor wire, between copyrighted works and the public domain.

    I have a friend who uses public domain music in his youtube stuff and one guy consistently tries to extort fees claiming he “represents the owner.”

    I spent 7 years in federal court when someone accused me of trademark and copyright violation. I won on all counts. It was a hard, brutal legal education for this mild-mannered criminal defense attorney.

  4. I’m so glad these guys lost in court. They’re the literary equivalent of a scum-sucking patent troll.

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