One of the country’s most well-known judges has taken the Arthur Conan Doyle estate to task for shaking down publishers, and for threatening to collude with distributors like Amazon and Barnes & Noble to wring licensing revenue for Sherlock Holmes works that are clearly in the public domain.
In a ruling issued Monday in Chicago, U.S. Circuit Judge Richard Posner ordered the Doyle estate to pay $30,679.93 in legal fees to Leslie Klinger, an author and editor who crushed the estate’s demands for licensing fees on a Sherlock Holmes anthology composed of stories written before 1923.
Posner’s order, which comes after the court in June rejected the estate’s unusual theory to expand copyright protection in the Holmes character, also describes the Doyle estate’s demands as “a form of extortion” and praises Klinger for standing up to them. As is customary for Posner, he explains the conflict through the lens of law and economics:
Copyright holders, the authors explain, have larger potential upsides and smaller downside risks to filing suit, since if they win they obtain damages but if they lose they don’t have to pay damages (although a loss, especially if recorded in a published opinion as in this case, may make it more difficult for them to play their extortionate game in future cases […]
The willingness of someone in Klinger’s position to sue rather than pay Doyle’s estate a modest license fee is important because it injects risk into the estate’s business model. As a result of losing the suit, the estate has lost its claim to own copyrights in characters in the Sherlock Holmes stories published by Arthur Conan Doyle before 1923. For exposing the estate’s unlawful business strategy, Klinger deserves a reward but asks only to break even.
Posner also takes the unusual step of implying that the Doyle estate is violating antitrust law by “asking Amazon and other booksellers to cooperate with it in enforcing its nonexistent copyright claims against Klinger.”
Overall, the case highlights yet again the problem of America’s bloated copyright terms, which often extend to more than a century thanks to a series of extensions by Congress. Such terms do little or nothing to encourage the creation of new work, but do provide an opportunity for copyright opportunists and their bands of lawyers to engage in shakedowns.
Law professor Rebecca Tushnet has more on the ruling, in which she says “Judge Posner throws his usual rhetorical bombs around, this time to the delight of copyright restrictionists.” She’s right about the rhetorical bombs: you can delight in more of them in the ruling below.