joegratz.net

In Slate’s Explainer column, Brendan I. Koerner analyzes whether Doubleday’s publication of writings by the leaders of Al Qaeda constitutes copyright infringement. He concludes that while the works are protected by copyright, Doubleday’s use is fair use.

This Reuters story indicates that a Doubleday spokesperson agrees:

Doubleday said it will pay royalties to the translator of the original Arabic material — Raymond Ibrahim, a Library of Congress employee who is still working on the book.

…

Normally U.S. royalties for a foreign book would accrue not only to the translator but to the authors of the source material — in this case bin Laden and al-Zawahiri.

[Doubleday spokesperson Suzanne] Herz said that “technically they could sue us,” but said Doubleday believed there was such an historic need to publish their writings in the United States that “the law affords us an exceptionally broad privilege of fair use.”

“We would never pay royalties to Osama bin Laden or any other known terrorist,” she added.

I’m pretty sure they’re wrong, but we’ll never find out. This is the verbatim, widespread, commercial translation and republication of entire copyrighted works, unaccompanied (as far as I can tell) by critical or scholarly commentary. Use doesn’t get much less fair.

As the Supreme Court told us in Harper & Row, just because a particular copyrighted text is extremely newsworthy or was written by a public figure doesn’t broaden fair use. And, contrary to Koerner’s assertion, translation is not a transformative use in this case; the original is a text that you read to learn what bin Laden had to say, and the translation is a text that you read to learn what bin Laden had to say.

But Doubleday could say just about anything they wanted to about their legal justifications for publishing bin Laden and al-Zawahiri’s works, since they’ll never be sued for copyright infringement. It’s obvious that the authors themselves wouldn’t appear in court to sue Doubleday, since they’re all subjects of an international manhunt. Who else might have standing to sue? Perhaps the publishers, but according to the article “Jihad Press” has no known address — and, I suspect, wants to keep it that way.

(Via sivacracy.net)