Monday, January 10, 2011

Sanitizing Huck Finn: A Modest Proposal

The news, reported last week by Publisher’s Weekly that NewSouth Books plans to release a version of Mark Twain’s great American novel, The Adventures of Huckleberry Finn, in which Twain’s use of the “n” word is excised and replaced with the word “slave”, and in which the word “injun” referring to Native Americans, will also be cut, has set the blogosphere on fire. This is, unfortunately, old news – it isn’t the first time, nor will it be the last, that classic works of literature have been revised for any number of reasons, including a concern that contemporary social or political views support such revisions.

What this debate does highlight is what may be deemed a problem in our intellectual property structure with respect to the protection of the integrity of an author’s work, after the copyright term in the work expires. The problem is that to the extent, admittedly limited, that U.S. law protects the integrity and authenticity of a work of expression, that protection evaporates when the term of copyright ends and the work goes into the public domain. Right of publicity laws don’t add any protection here, as most such rights expire before the copyright term ends.

Why is this a problem? NewSouth’s publication highlights the concern. This issue of Huckleberry Finn will not be published as a “revised version”. Readers of this version may never know the actual language Twain used, which as many commentators have noted, was not used because Twain was a racist, but rather because he was making a comment on the racism of his time. The same problem exists for other literary works: there is nothing to prevent revisionist publishers from publishing a version of works by the Bronte sisters in which their heroines exhibit more contemporary views about the roles of women; or of revised versions of Hemingway works that make his characters a bit less macho and more sensitive; or that give Kerouac’s characters jobs and a sense of social responsibility.

How do we address this issue? While I am tempted to recommend that we extend a form of moral rights indefinitely to prevent what I view as a distortion of the original writer’s intent, I also recognize the value of re-interpreting works to reflect a different perspective, as was the case in recent years by the re-interpretation of Gone With the Wind in the parody version entitled The Wind Done Gone, told from the slave’s perspective. So my recommendation instead is that we consider legislation amending the copyright law to require publishers of “revised” versions of works in the public domain to give prominent notice, on the covers of the works, that this is a “revised” version, and that in introductory notes, the publishers explain the nature and scope of the revisions, so readers can choose whether to read the revised or original version. What do you think?

Tuesday, January 4, 2011

Smart Phones, Privacy and the 4th Amendment: New Worries for a New Year

The California Supreme Court, in the majority's decision in the case of People v. Diaz, issued January 3rd, has given privacy advocates a new worry for the new year. The majority rejected a 4th Amendment challenge to the reasonableness of a warrantless search of a cell phone text message folder in a drug arrest case. The majority opinion, written by Justice Chin and joined by Justices Kennard, Baxter, Corrigan and Retired Chief Justice Ron George, citing the Supreme Court's decision in U.S. v. Robinson (1973) 414 u.s. 218, 224, held that the phone's database, found on the person of the defendant, could be searched without a warrant because the search was "incident ot a lawful arrest". The rationale for this exception to the 4th Amendment's bar against warrantless searches is that that evidence might be destroyed or concealed by the defendant if the property remains "within his immediate control". Because a cell phone can be carried in a person's pocket or purse, the majority distinguished this case from U.S. v. Chadwick (1977) 433 U.S. 1, wherein a warrantless search of a 200 lb. footlocker was thrown out as violative of 4th Amendment rights.

Justices Werdeger and Moreno strongly dissented, arguing that today's smart phones are essentially mini-computers that can store vast amounts of personal data, the search of which violates privacy rights. Interesting case - it means that if you are arrested for a DUI for example, police have the right to search the entire database of your cellphone without a warrant. Seems wrong, and I think the dissent is right. U.S. District Court Judge Ilston has ruled to the contrary in a federal case, and the Ohio Supreme Court has also rejected such searches. The U.S. Supreme Court may see this one - stay tuned.

New Year's Resolution: Blog more! Happy New Year to all readers, new and old!