Other means

Early in the federal indictment of former President Trump that was released yesterday, special counsel Jack Smith admits that Trump, “like every American,” has the right to say whatever he wants about the 2020 presidential election—and even has the right to lie about it. But it was a crime, Smith asserts, for Trump to use lies to obstruct and distort the tallying and certifying of election results. Smith goes on to indict Trump for conspiracy to defraud the United States, conspiracy to obstruct the certification of presidential election results, and conspiracy to deprive Americans of their right to vote.

The distinction between lying that is free of legal consequences and lying in order to commit fraud and obstruction isn’t a terribly subtle one, but there are going to be people who will pretend they don’t understand it. If Trump has the right to lie to NBC News, they will ask, why doesn’t he also have the right to lie to Georgia’s Secretary of State about Georgia’s election results? So let’s get this out of the way: If I announce at my favorite local gay bar that Ryan Gosling and I have just gotten married, and I succeed in making all my friends jealous, I’m not committing a crime. But if Gosling and I file our taxes together, falsely claiming on the forms that we’re married, in an attempt to pay less tax than we would otherwise have to, it’s fraud. And it’s still fraud even if we don’t get away with it.

There are probably also going to be people who claim that Trump and his conspirators may not have been aware that the claims they were making were untrue. Smith’s indictment shivs that defense pretty brutally. In paragraph 30 (¶30) of the indictment, to take just one bald-faced example, John Eastman, aka “Co-Conspirator 2,” acknowledges in an email that he and Trump have learned that some of the allegations in a verification they have signed are “inaccurate” and that signing a new verification “with that knowledge (and incorporation by reference) would not be accurate”—and then he and Trump go ahead and put Trump’s signature on the new verification anyway.

Yesterday’s indictment isn’t as much fun to read as Smith’s earlier indictment of Trump for withholding classified security documents, partly because a more serious matter is at stake (national security secrets are important, but they’re not as important as the right to vote, and Trump seems to have been treating the secret documents as memorabilia, anyway, a motivation so entertainingly venal that it’s hard to treat the earlier matter with the gravity it deserves) and partly because the way Trump and his allies lied—over and over again, shamelessly—is exhausting. The catalog of their lies in Smith’s indictment is practically Homeric. They lie, are told they are lying, and then tell the same lie again. Remember the years we spent trying to argue in good faith with people who were repeating lies in bad faith? These are those people. “It’s all just conspiracy shit beamed down from the mothership,” (¶25) admits a senior advisor to the Trump campaign, in a private email, dismayed by his team’s repeated losses in court and exasperated that the team’s political strategy obliges him or her to pretend publicly to believe in repeatedly debunked claims.

The particular lie that pushed this senior advisor into venting was about election workers at the State Farm Arena in Atlanta. Giuliani (“Co-Conspirator 1”) told the lie to Georgia state senators on December 3, 2020 (¶21), the lie was publicly debunked by the Georgia secretary of state’s chief operating officer on December 4 (¶23), Georgia’s attorney general told Trump there was no evidence for the claim on December 8 (¶24), Giuliani told the lie again in a public hearing before a committee of Georgia’s state representatives on December 10 (¶26), Trump’s acting attorney general and acting deputy attorney general told Trump the actions at State Farm Arena had been “benign” on December 15 (¶27), Trump’s chief of staff told him the election tallying at State Farm Arena had been “exemplary” on December 22 (¶28), Trump nonetheless tweeted that Georgia’s election officials were “terrible people” who were hiding evidence of fraud on December 23 (¶28), Trump repeated the lie to his acting attorney general and acting deputy attorney general on December 27 (¶29), Trump signed a verification incorporating the lie on December 31 (¶30), and Trump repeated the lie one more time on January 2, 2021, to Georgia’s secretary of state, during the infamous conversation when Trump said he was looking to “find” 11,780 more votes (¶31).

After Giuliani told the lie in Georgia’s House of Representatives on December 10, “the two election workers received numerous death threats,” Smith observes (¶26). The identities of the people who made those death threats are very likely unknown, but almost certainly neither Trump nor any of his co-conspirators made the threats.

Why are they nonetheless part of Smith’s indictment? If the case ever reaches trial, Trump’s lawyers may try to argue that he shouldn’t be held responsible for threats made by a third party. But keep in mind the distinction that is the crux of the case, between lying for the sake of vanity or entertainment and lying in order to obstruct or impede the workings of democracy. A death threat is not an innocuous speech act. It is a promise to use violence. A public lie about a government employee or official, if a reasonable person would expect the lie to trigger death threats, is therefore a kind of force, applied on a government employee or official with respect to the performance of their duties. “An act of force to compel our enemy to do our will”: that’s Clausewitz’s first (if less famous) definition of war. With good reason, the laws in any well-ordered republic forbid acts of war between politicians and/or citizens. Hobbes writes, in Leviathan, that “because all signs of hatred, or contempt, provoke to fight, . . . we may . . . , for a law of nature, set down this precept, that no man by deed, word, countenance, or gesture, declare hatred, or contempt of another.” In a state of war, one isn’t necessarily bound by the laws of nature, Hobbes writes, and we don’t want to be living in a state of war.

On November 11, 2020, Trump disparaged a Philadelphia City Commissioner who had said there was no evidence of voter fraud in Philadelphia, and the commissioner and his family were sent death threats (¶42). And on January 6, 2021, famously, Trump tweeted that “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution,” and one minute later, the Secret Service felt obliged to evacuate Pence to a secure location. Rioters who broke into the Capitol that afternoon chanted, “Hang Mike Pence!” (¶111–13). If Trump knows anything about himself, and it may be the only thing about himself he knows, it is that he has a gift for summoning and directing the rage of his followers. It is his instinct in a crisis, almost a reflex. Words for him are instrumental, not representative. He knew what he was doing.

The prospect of violence recurs at two other moments in the indictment. On January 3, a deputy White House counsel warned Jeffrey Clark (“Co-Conspirator 4”) that if Trump were kept in power on the basis of false claims of voter fraud, there would be “riots in every major city in the United States.” Clark replied, “Well, . . . that’s why there’s an Insurrection Act.” Clark, in other words, looked forward to repressing with military force any protest of the power grab he and his conspirators were trying to effect.

In its legal specifics, the scheme to keep Trump in power depended on the theory that Pence had the authority to reject or return to the states their slates of legitimate electors. On January 4, John Eastman acknowledged to one of Trump’s senior advisors that no court was likely to back the theory, and the advisor warned Eastman that by drumming up public fury on the strength of a theory that could never be put into effect legally, Trump and his allies were “going to cause riots in the streets.” Eastman replied that it wouldn’t be the first moment in American history when violence was needed to protect the republic (¶94). Eastman, in other words, looked forward to bolstering with street violence a legal theory he conceded was unjustifiable.

Clark looked forward to putting down rioters, and Eastman looked forward to being backed by them, but both knew that through lies they were welcoming violence into politics. Clausewitz’s second, more famous definition of war is “a continuation of political activity by other means”—the implication being that politics has its own means. To maintain the rule of law, politicians who go beyond them must be kept out of politics, if not sent to jail.

A novelist visits the Trump Presidential Library

On Thursday, 8 June 2023, the Department of Justice indicted former President Donald Trump on charges of willful retention of national intelligence documents, conspiracy to obstruct justice, and lying to the FBI. On Friday, 9 June, the indictment was unsealed. Like many people curious about American politics, I printed out a PDF of the indictment on Friday night and read it a few times over the weekend. Here’s the DOJ’s own version, which has the photographs in color, if you’d like to read it and haven’t yet.

A lot of pixels have been toggled already over the political and legal ramifications, but I found myself thinking about a different angle: If Trump were a character in a novel, what would the scenes recounted in the indictment say about him? Some are quite vivid.

The genre of the indictment is odyssey: banker’s boxes full of presidential papers take a journey into exile, which ends, for some but far from all of them, in an eventual homecoming back into federal custody. Trump helped to pack the boxes in January 2021. When he left the White House, he had them moved to Mar-a-Lago, his Florida resort. The indictment doesn’t say how many boxes there originally were, but I think I count eighty-one in the photo on page 10 of the indictment, which shows them stacked on the stage of a Mar-a-Lago ballroom (the first four rows seem to be two boxes high, and of these, the front row is eleven boxes across, the second row ten across, the third nine across, and the fourth seven across; at the very back of the stage, there also seems to be one stack of three boxes and another stack of four). According to the indictment, the boxes spent January, February, and March 2021 on the ballroom stage.

Why did Trump take so many papers with him when he left the White House? It seems doubtful he meant to read through them. He doesn’t seem like the sort of person who would want to come to a deeper understanding of the past he had just lived through. “He doesn’t really read anything,” said one of the intelligence officials who struggled to keep Trump informed while he was in office. I suspect that very few of the papers were written by him, or even written on by him, in his childlike black-marker all caps. The best that can be said is that the papers happened to him. Or that they constitute evidence of things that happened to him. In the photo on page 14 of the indictment, where a few of the banker’s boxes have spilled open, what’s visible are front pages of the Washington Times, the Wall Street Journal, and the Financial Times; color print-outs of him speaking to the press on a tarmac; the print-out of a webpage with a headline that reads, in part, “honesty about security clearances” (a nice piece of sortes webiana; it could be this article); and a piece of paper redacted with a long black rectangle at the top that obscures what the DOJ calls “visible classified information.” The last document is the kind that has put Trump in legal jeopardy. According to the indictment, this particular one was labeled “Secret” and “Five Eyes,” was dated 4 October 2019, and was concerned with “military capabilities of a foreign country.” Out of 102 documents labeled Secret, Top Secret, and Confidential that the DOJ seized from Trump, the DOJ has itemized thirty-one that it is charging him with illegally retaining, and the DOJ has assigned this particular document the number 8. In an issue of his newsletter Pwnallthethings, Matt Tait has made educated guesses about the specific contents of the thirty-one documents listed in the indictment, though he hasn’t (yet) made headway with #8.

Maybe Trump thought of the documents as trophies. That could be a powerful motivation for a personality like his. After all, what O. J. Simpson went to prison for, in the end, was not murder but the theft at gunpoint of pieces of memorabilia that he felt belonged to him.

Whatever the nature of Trump’s attachment to these papers, it’s safe to say that people close to Trump saw through it. By April 2021, some of the boxes had been put in Mar-a-Lago’s business center, and on 5 April 2021, according to the indictment, “Trump Employee 1” asked “Trump Employee 2,” believed to be a woman named Molly Michael, if it would be okay to move the boxes out.

“Woah!!” Molly Michael replied, using the internet’s preferred spelling. “Ok so potus specifically asked Walt for those boxes to be in the business center because they are his ‘papers.’ ”

Note the scare quotes. In another exchange later the same day with Trump Employee 1, Michael’s contempt for the “papers” is even more pronounced. When Trump Employee 1 asks if he can put into storage a few things stored in the business center that aren’t paper, Michael replies, “Yes, anything that’s not the beautiful mind paper boxes can definitely go to storage.”

“Beautiful mind paper boxes.” It has been suggested that she is alluding to a scene in the movie A Beautiful Mind in which the hero, a mathematician who has descended into schizophrenia, is revealed to have covered the walls of his study with newspaper clippings and connected them with dark lines while diagramming his conspiracy theories. But I think it’s more likely that she’s using the movie title as shorthand to refer to Trump’s habit of praising his own intellect; he has famously called himself as “a very stable genius” who has “a very good brain.” Michael could be deploying both possible meanings, of course. In any case, she’s not fooled.

I don’t think anyone is ever fooled by Trump. The Dunning-Kruger effect notwithstanding, I think even his ardent supporters know he isn’t literate or well informed about the world, and that his only accomplishments are in the dark sports of bullying, misleading, and emotional manipulation. They like it that he’s mediocre and seethes with grievance about it; that he wasn’t even able to live off an inheritance in a humane, damage-limited way; that despite being given great wealth and opportunity, he has remained small. The better to represent resentment with, my dear. The psychoanalyst Wilfrid Bion wrote about “the hatred of learning by experience,” that is, the wish that people harbor for magical, instant solutions, for shortcuts that bring the rewards of development without any of the tedium and effort that are customarily required: the dream of becoming rich by winning the lottery, of becoming strong by joining an armed militia, of becoming intelligent by having intelligence reports given to you. In Trump, the hatred of learning by experience had an impossible triumph. He wouldn’t mean the same thing if he had become the leader of the free world by working for it.

Trump’s supporters probably like it, therefore, that he doesn’t understand how the documents he collected function in a bureaucracy, and that he is willing and able to use his ignorance to distort the testimony that the documents do offer. For example, on page 15, the DOJ’s indictment quotes from a meeting at Trump’s Bedminster club on 21 July 2021 between Trump, a writer, a publisher, and two Trump staffers, one of whom, believed to be Margo Martin, recorded it. At the time of the meeting, Gen. Mark Milley, formerly chairman of the joint chiefs of staff, had recently told the press that during Trump’s last days in office, he had taken steps to stop any attempt by Trump to start a war. During the interview at Bedminster, Trump brandishes a plan to attack Iran that was prepared by the Defense Department, claiming that the plan was Milley’s and that the document detailing it proves that it was Milley not Trump who flirted with war. “This totally wins my case, you know,” Trump says. In fact, the plan had been drawn up earlier, when the chair of the joint chiefs was Joseph Dunford, and even if it had been produced under Milley’s chairmanship, it’s the responsibility of the Defense Department to draw up such contingency plans—there are almost certainly detailed plans for an invasion of Canada on a hard drive somewhere in the Pentagon at this very moment—and there’s nothing exceptional about the document itself. What’s exceptional is that it ended up in Trump’s hands, because that means that, while Trump was President, he asked to see it. In other words, if the document is evidence of anything, it’s evidence that Milley was right to be anxious that late in his regime, Trump might have been considering war. (This recorded conversation more or less proves the Justice Department’s case against Trump, by the way, because during it, Trump acknowledges that “This is secret information,” acknowledges that “as president I could have declassified it,” and acknowledges that “Now I can’t [declassify it], you know, but this is still a secret.” As the indictment drily comments, “At the time of this exchange, the writer, the publisher, and TRUMP’s two staff members did not have security clearances or any need-to-know any classified information about a plan of attack.”)

Though in this one instance, Trump seems to have tried to use a classified document as a political weapon, the primary meaning of the papers seems to have approached the sentimental. On 24 June 2021, Trump’s valet, Walt Nauta, texted Molly Michael two photos from the Mar-a-Lago storage room, showing banker’s boxes spilling their papers onto the floor. Two texts came from Michael’s phone in reply: “Oh no oh no” and “I’m sorry potus had my phone.”

“Oh no oh no”: an immediate, almost instinctual response. Was the injury inflicted on Trump by the sight of the spilled papers so sharp that he forgot whose phone he was holding? Or maybe he’s just in the habit of casually overwriting the identity of those around him. In the second text, Michael distances herself from the expression of dismay that Trump sent through her phone. She wants it to be clear to Nauta that she, at least, knows it’s not a tragedy if a box neglected in a storeroom has tipped over. Solicitude for things is embarrassing, especially when the things are being used to prop up vanity. Or maybe what’s embarrassing is when vanity so baldly takes a place in the psyche that should be reserved for emotions felt for people. In a text exchange reported on page 23 of the indictment, a “Trump family member,” probably Trump’s wife, Melania, also shows little patience with Trump’s investment in the boxes. “Not sure how many he wants to take on Friday on the plane,” this family member writes on 30 May 2022. “We will NOT have a room for them. Plane will be full with luggage.” The papers are just stuff, to the people around Trump. In a kind of self-defense, his intimates deny the papers have any larger import.

They know he doesn’t understand the papers, that the papers have no meaning for him beyond the greatness he thinks they reflect on him. In January 2022, Trump returned 15 boxes of papers to the National Archives, which, after the archivists found classified material in the boxes, triggered the DOJ’s investigation—and if you’re keeping score, left about 66 boxes in his keeping. Between 23 May 2022 and 2 June 2022, Nauta moved roughly 64 boxes from the Mar-a-Lago storage room to the rooms in Mar-a-Lago where Trump and his family live, at Trump’s request. Then, at around lunchtime on 2 June, Nauta and another employee returned 30 boxes to the storage room, in anticipation of a visit from “Trump attorney 1,” who has been identified as Evan Corcoran, who was arriving that afternoon to look through the boxes for government documents marked as classified, in response to a subpoena from the Department of Justice.

For the DOJ’s purposes, what’s telling here is that 34 boxes were withheld from Corcoran, deliberately and at Trump’s direction, so that Corcoran was never able to inspect them. For an understanding of Trump’s relationship to the papers, however, it’s perhaps also telling that Trump thought he could meaningfully sort through so many boxes in just a few days. Of the 64 boxes brought to Trump before Corcoran’s visit, 50 were brought to him on 30 May, and 11 on 1 June. In less than three days, therefore—and he probably didn’t spend the entirety of any of the three workdays on the task—Trump made a meaningful selection from more than sixty boxes of papers? On what basis? If he had been scanning only for security markings, maybe he could have grabbed most of the papers so marked, but if that had been his goal, why not let Corcoran see everything? No, Trump’s time with the papers was more personal. “I don’t want anybody looking, I don’t want anybody looking through my boxes, I really don’t, I don’t want you looking through my boxes,” Trump told Corcoran, according to Corcoran’s notes. What kind of selection was Trump making? Was he deciding which pages he could bear to surrender? There’s a hint here that he felt some mystical connection to the papers. During an earlier sorting, in January 2022, in advance of Trump’s surrender of fifteen boxes to the National Archives, Nauta seems to have helped Trump with the sorting; toward the end of the process, Nauta had to ask a colleague for “new box covers,” explaining that “They have too much writing on them…I marked too much.” The markings probably had to do with the contents of each box; it’s possible that the markings made it dangerously obvious that Trump and Nauta knew they were playing with classified material. In late May and early June, however, Trump seems to have done his sifting alone. Maybe his work was sped up by his having previously worked through the boxes with Nauta in January. Still, not even a crackerjack professional archivist at the top of his game could process more than sixty banker’s boxes of paper in less than three days. At best what Trump was doing, I suspect, was childish magic. A sorting by touching: one for me, one for them.

The odyssey of Trump’s papers doesn’t come to a neat conclusion. The indictment reports that on 3 June 2022, “NAUTA and others loaded several of TRUMP’s boxes along with other items on aircraft that flew TRUMP and his family north for the summer.” Presumably these boxes contained the papers most precious to Trump. Had these boxes returned south by the time the FBI searched Mar-a-Lago on 8 August 2022? At the time of the raid, Trump was in the New York area. If the precious papers were with him then, they would have escaped the FBI’s trawl. Perhaps they were seized by the FBI in a search of a Trump property in New York or New Jersey that hasn’t yet been reported. But they might still be in his hands.

The Future of books and copyright

View of the Interior of the Finishing Room, in Jacob Abbott, 'The Harper's Establishment, or How the Story Books Are Made'

This past weekend, just before the hurricane, I attended In Re Books, a conference about law and the future of the book convened by James Grimmelmann at the New York Law School. Playing the role of Luddite intruder among the futurologists, I gave a talk about the hazard that digitization may pose to research and preservation. Though there were a few librarians, leaders of nonprofits, and even writers present, most of my fellow conference attendees were lawyers who specialize in copyright, and I discovered that copyright lawyers see the world rather differently than do the writer-editor types with whom I usually rub shoulders. They don’t expect publishing as I know it to be around much longer, for one thing. I thought I’d try to write up my impressions of the time I spent in their company. Please keep in mind that I’m not a lawyer myself. I’m just a visitor who went to the fair.

A specter was haunting the conference: the ghost of the settlement that Google Books tried to make with the Authors Guild several years ago. That settlement, slain by Judge Denny Chin in late 2011, had attempted to obtain digital rights to what are known as orphan works, books that are protected by copyright even though the author or publisher who holds the copyright can no longer be found. The settlement had proposed to set up a collective licensing system that would charge for digital access to all books under copyright, parented and ophaned. Proceeds from orphan works, it was suggested, might be shared with findable authors, if no actual rightsholder could be found and if anything was left over after the rights management organization was done paying for itself. The proposal was far from perfect. Why should Google get to sell orphan works and nobody else? Why should the profits from orphan works go to people who didn’t write them? It turns out that the death of the agreement is not much lamented by the copyright lawyers. When Minda Zeitlin, president of the American Society of Journalists and Authors, asked, “Is there anyone better to represent dead and unfindable authors than living and findable ones?” the retort from Pamela Samuelson, a copyright law professor at the University of California at Berkeley, was sharp: “I’m a better representative of an author like me,” Samuelson said, her implication being that an academic author aims in publishing to further knowledge and build a reputation, not make money. Roy Kaufman, who works at the Copyright Clearance Center, a collective licensing agency founded in 1978 in response to the disruptive technology known as the photocopier, was at pains to distinguish his employer’s system from the one advanced by Google Books and the Authors Guild. The Copyright Clearance Center is opt-in and nonexclusive, he assured the audience. His message was studiously non-threatening: mass digitization could involve rightsholders. Maybe it could take the form of collective licenses arranged between social-media networks and publishers. Facebook, for example, could pay the New York Times for articles and photos that its users posted.

Kaufman’s support for collective licensing, however cautious, was atypical. Most at the conference were against it. Samuelson thought it inadvisable in general, as did Matthew Sag, of Loyola University Chicago, who justified his dislike by pointing to the failures and subsequent reboots of a compulsory licensing system recently set up in the United States for the webcasting of music.

What, if anything, will take the ghost’s place? At the conference, a leading contender was the idea that fair use might solve the orphan works problem—an idea recently advanced by Jennifer Urban of the University of California at Berkely. Fair use, as I wrote in a review-essay for The Nation earlier this year, is an exception to copyright written into American law in 1976. It’s because of fair use that a reviewer doesn’t need to ask permission before he quotes from a book, and it’s because of fair use that an Obama campaign commercial can quote a Romney speech, or vice versa, without paying for it. In the last few years, courts have been more and more generous in how they define fair use, perhaps because Congress seems so unlikely to help sort out the tangles in copyright. In a recent case between the Authors Guild and a digital books repository called Hathi Trust, for example, a court found that three of the four things that Hathi wanted to do with digital texts were fair use: data-mining, indexing, and providing access to the blind. America’s 1976 copyright law specifies four factors to consider in determining fair use—the nature and purpose of the new use, the nature and purpose of the original work, the amount taken, and the impact on the original creator’s income—but in the last couple of decades, judges have focused on whether a new use is “transformative” of the old content it borrows from. Whatever purpose Thomas Pynchon had in mind when he wrote Gravity’s Rainbow, for example, he probably didn’t imagine computerized search of his novel along with a myriad of others in order to find patterns of word usage. That’s a completely new use, a transformation of the purpose of his words unlikely to interfere with the money he expected to make from his novel, so the judge in the Hathi Trust case found it fair.

Sag and Samuelson favored Urban’s idea, which was also mentioned by Doron Weber of the Alfred P. Sloan Foundation, which funds the Digital Public Library of America. Since I hadn’t read Urban’s paper, I asked Sag what kind of transformation lay behind her deployment of fair use. There wasn’t any, he explained, to my surprise, and now that I look at the paper, I see what he means. Urban thinks libraries and universities should be able to provide digital facsimiles for their patrons to read—exactly the same use for which the books were originally published. She also frankly admits to wanting the right to reproduce entire works, not just samples or snippets of them. But she argues that such use would be fair nonetheless, based on the four factors conventional in fair-use analysis. She maintains that libraries and universities are nonprofit institutions, who would be offering access to the texts as a noncommercial service for such public-spirited purposes as research and preservation. (For this part of her argument to hold water, would a university library need to open itself to the public in a general way? Right now the services of a university library, however worthy, are for the most part bestowed only on its own students and faculty, and their character is not purely altruistic.) And she argues that the orphanhood of an orphaned work is more important than previous analysts have seen: “Orphan works,” she writes,

represent a clear market failure: there is no realistic possibility of completing a rights clearance transaction, no matter how high the costs of that transaction, because one party to the transaction is missing.

Therefore market harm, the fourth factor of fair-use analysis, is nugatory, in Urban’s opinion. The trouble with her argument here, I think, is that it’s impossible to know whether a so-called orphan work is really an orphan or merely a work whose parents haven’t shown up yet. If the parents do exist, the market harm to them is real, and it would be as wrong for a court to give the value of their work to Urban’s university library as to give it to Google or a third-party author. Urban seems to be transferring the copyright rather than carving out an exception to it, and I’m afraid that only Congress, in its capacity as the sovereign power of the United States, has the authority to dispose of someone else’s copyright, in an act of eminent domain. Without any claim of a transformation, it seems unlikely to me that Urban will convince a court to define fair use so broadly that it includes reproducing whole works for much the same purpose that they were originally published. But this is just my opinion. The copyright lawyers seem excited by her idea, and as yet no one knows how far it will go. It’s up to the courts. As Jule Sigal, of Microsoft, noted in his presentation, the orphan-works problem has passed through the Age of Legislation (2005-2008) and the Age of Class Action (2008-2011), and we are now living in the Age of Litigation.

The other big new idea at the conference was that the first-sale doctrine might be extended to e-books. That sentence will sound like gibberish to the uninitiated, so let me back up and explain. The first-sale doctrine is a legal concept that limits the control that copyright affords. Specifically, it limits copyright control to the period before an item under copyright is first sold. Once you buy an ink-on-paper book, for example, you’re free to re-sell the book on Ebay at a fraction of the cost. Or give it to your boyfriend. Or take an X-acto blade to it and confuse people by calling the result art. You don’t have the right to sell new copies of the book, but you’re free to do almost anything else you like with the specific copy of the book that you bought. Without the first-sale doctrine, used bookstores would be in constant peril of lawsuits.

Two speakers at the conference told the story of Bobbs-Merrill v. Straus, the 1908 case that established the first-sale doctrine. On the copyright page of the novel The Castaway, the publisher Bobbs-Merrill set the retail price at one dollar and threatened to sue discounters for breach of copyright. Macy’s sold the book for eighty-nine cents anyway, triggering a lawsuit, and the court ruled that copyright afforded Bobbs-Merrill control over the book’s price only up to the moment when Bobbs-Merrill, as a wholesaler, sold copies to Macy’s, which then became free to set whatever retail price it wanted. Ariel Katz, of the University of Toronto, noted that the story is usually told as if the case involved an attempt at what’s known as “vertical” price-fixing—that is, an attempt by a wholesaler to fix the prices charged by independent retailers further down the supply chain. But Katz maintains that it was actually a story of “horizontal” price-fixing—that is, an attempt at collusion in price-fixing by companies that are supposed to be in competition with one another, wholesalers in collusion with wholesalers, and retailers with retailers. The Straus brothers who ran the Macy’s department store were “retail innovators,” Katz explained, who sold a wide variety of goods, including books, at steep discounts, thereby angering publishers and traditional booksellers. The members of the American Publishers Association publicly swore to refuse to supply retailers who discounted the retail price of books, and the American Booksellers Association publicly swore to boycott any publishers who didn’t toe the American Publishers Association’s line. It was the Straus brothers who first went to court, accusing the publishers and booksellers of antitrust violations, but the outcome of this first case was ambiguous: the court ruled that publishers could only set the prices of books that were under copyright. It wasn’t until the 1908 case that the court limited price-setting even of copyrighted books to the period before their first sale.

(As Katz pointed out, it isn’t obvious why publishers and booksellers should have been willing to collude in fixing prices, and he proposed an economic explanation that I wasn’t quite able to follow. He suggested that the price-fixing was an attempt to solve a challenge first discovered by Ronald Coase: if you sell a durable good and you’re a monopolist, you soon find that your monopoly isn’t as profitable to you as you’d like it to be, because you’re in competition with yourself—that is, you’re in competition with all the durable goods you’ve already sold, which suppress demand. The only way to keep prices from falling is to convince consumers that you’ll never let them fall. Katz argues that the limit to booksellers’ shelf space helped publishers make credible their promise never to lower prices, and that in the digital world, where shelf space is unlimited, no similar promise will be as credible. He ran out of time before explaining in detail how this mechanism would work, and as I say, I didn’t quite follow. I also wasn’t quite certain that books qualify as durable goods. Most people, once they’ve read a book, prefer to read a new one instead of re-reading the one they just finished, a fact that suggests that books are more like loaves of bread than refrigerators. But I may be missing something.)

Aaron Perzanowski, of Wayne State University, framed the story of Bobbs-Merrill v. Straus in the context of a common-law tradition of rights exhaustion—the word exhaustion here having the sense of a thing coming to its natural end. In Perzanowski’s opinion, the right to control price is not the only aspect of copyright that expires when an item under copyright is sold. The owner of a work has purchased the use and enjoyment of it, Perzanowski argued, including perhaps the rights to reproduce the work and to make derivative works. Perzanowski made explicit a further leap that remained mostly implicit in Katz’s talk: Shouldn’t the first-sale doctrine apply to e-books, too? As a contractual matter, e-books are rarely sold, in order to prevent exactly this eventuality. In the fine print, it transpires that what distributors purchase from publishers, and what readers purchase from distributors, are mere licenses. But if courts were to recognize readers of e-books as owners, the courts could grant readers the right to re-sell and a limited right to reproduce what they had purchased. Jonathan Band, of Policy Bandwidth, in his assessment of recent legal victories won by university libraries on the strength of fair-use arguments, noted that he saw the first-sale doctrine as likely to be important in future disputes over digital rights. Libraries, he said, felt that they had already purchased the books in their collection and ought to be able to convey them digitally to their patrons.

Extending the first-sale doctrine to e-books might make libraries happy, but it would horrify publishers. Right now, only two of the six largest American publishers allow libraries to lend all of their e-books, and one of those two sells licenses that expire after twenty-six check-outs. Librarians sometimes become quite indignant over the limitations and refusals. “Are publishers ethically justified in not selling to libraries?” one asked at the conference. A recent Berkman Center report, E-Books in Libraries, offered some insight into publishers’ reluctance:

Many publishers believe that the online medium does not offer the same market segmentation between book consumers (i.e., people who purchase books from a retailer) and library patrons (i.e., people who check out books from a public library) that the physical medium affords.

When was the last time you checked out a printed book from the library? My own impression is that gainfully employed adults rather rarely do. (At least for pleasure reading. Research is a different beast.) Maybe they prefer to buy their own books for the sake of convenience, which ready spending money enables them to afford. Or maybe it’s to signal their economic fitness to romantic partners, or to broadcast their social status more generally. But whatever the reason, the fact is that publishers don’t sacrifice many potential sales when they sell printed books to libraries, because library patrons by and large aren’t the sort who purchase copies of books for themselves. The case seems to be different with e-books, though, especially if patrons are able to check them out from home. E-book consumers signal their economic status by reading off of an I-pad XII instead of a Kindle Écru; the particular e-book that they’re reading is invisible to the person on the other side of the subway car, so it might as well be a free one from the library. That means that e-book sales to libraries cannibalize sales to individual consumers. Publishers have tried charging libraries higher prices for e-books. They’ve tried introducing technologically unnecessary “friction,” such as a ban on simultaneous loans of a title, or a requirement that library patrons come in person to the library to load their reading devices. The friction frustrates library patrons and enrages librarians, and even so, it hasn’t been substantial enough to reassure the publishers who are abstaining from the library market altogether. If the future of reading is digital, the market-segmentation problem raises a serious question about the mission of libraries. In his remarks at the conference, the writer James Gleick, a member of the Authors Guild who helped to negotiate its late settlement with Google Books, said that he doubted that every lending library needed to be universal and free, and that he wished the Digital Public Library of America, which is still in its planning stages, were trying to build into its structure a way for borrowers to pay for texts under copyright. The challenge of bringing e-books into public libraries turns out to be inextricable from the larger problem of how authors will be paid in the digital age.

I’ll try to report what the lawyers think of that larger problem in a later post.

UPDATE: Part two here.

Neither new nor rare

Historians have debated at length the question of when certain ideas about homosexuality came into currency. Here’s a piece of evidence, not previously reported to my knowledge:

In the Supreme Judicial Court of Massachusetts on 11 December 1868, a young man named Samuel M. Andrews was tried for murder. He pleaded not guilty by reason of “transitory insanity.” He was driven mad, he said, by Cornelius Holmes’s attempt to have sex with him.

It was a strange, sad case. According to the prosecuting attorney, Cornelius Holmes was not like other men. He was fifty-three years old at the time of his death and weighed 225 pounds. A bachelor, he lived alone in a boarding house. Though he had no occupation, he was said to be worth $20,000. The prosecution claimed that “The only person with whom he was at all intimate was the prisoner,” Andrews, who had killed him. The defense more or less agreed with this characterization of their relationship. Andrews “was almost the first young man Cornelius Holmes had ever met, who had not slurred him, & hooted at him,” Andrews’s attorney said. He added that Holmes “was not an idiot; . . . He was rather slow; played in childhood with children younger than himself.”

How intimate were they? The lawyers tried to bring this out. There was a telling exchange during the examination of a witness named Lysander Bartlett, a ship’s carpenter:

Question. Were Cornelius & Andrews intimate friends?

Witness. Mr. Andrews can tell you better than I can.

Chief Justice. You should not say to counsel that Andrews can tell you that better than I can. It is improper.

Witness. ‘Tis, eh? I knew they were intimate. . .

After Andrews was arrested for the murder, witnesses saw him kiss Holmes’s body.

In court, Andrews had a difficult task: he had to establish the nature of Holmes’s interest in him, and he had to make it sound plausible that he had resisted Holmes’s advances despite their persistence. He didn’t quite manage. He testified that “about nine years ago one stormy evening,” he and Holmes had shared a bed. “After talking awhile he turned towards me, & tried to put a part of his person between my legs, behind. I left the bed.” Though Holmes made other advances, the friendship continued. In fact there were hints that Holmes had thought of leaving his money to Andrews.

The murder came about one day when Holmes beckoned Andrews to follow him off the road and into the forest. Once they were alone, Holmes threw him down, tore open his pantaloons, put his hand in a relevant place, and said, “Now I’m going to have some, this time.” In a panic, Andrews grabbed a stone . . . That, at any rate, is what Andrews claimed in court, though he also claimed, confusedly, that he was “entirely unconscious of what took place.”

In summing up, the defense stressed how common Holmes’s tendency was:

Nor, gentlemen, is this any new crime. Go to our soldiers & sailors, inquire of our naval officers & see whether it is a new crime. The government would have you believe that this is an improbable story, because the crime is rare; gentlemen, this story is more than probable, for it is a crime which has always existed.

The prosecution, on the other hand, stressed how unlikely it was that Andrews would have had to kill Holmes in order to defend himself from rape. “Rape,” the prosecution insisted, wasn’t even the right word; in fact, the proper word didn’t exist, because the thing was impossible. The whole question of sex between men, the prosecution suggested, was probably a red herring: “There was in the present case no adequate evidence of any voluntary acts of indecency between the parties,” the prosecution argued, “but even if such existed, these had no tendency to prove an attempt to commit this act by force.”

In his instructions to the jury, the judge observed that Andrews had taken Holmes’s earlier advances quite calmly and had remained his close friend despite them. Taking the hint, the jury found Andrews guilty of manslaughter, and he was sentenced to twenty years.

(Source: Report of the Trial of Samuel M. Andrews, Indicted for the Murder of Cornelius Holmes, before the Supreme Judicial Court of Massachusetts, December 11, 1868, including the Rulings of the Court upon Many Questions of the Law, and a Full Statement of Authorities upon the Subject of Transitory Insanity. By Charles G. Davis, of Counsel for the Prisoner. New York: Hurd & Houghton. Cambridge: Riverside Press, 1869.)