The National Endowment for the Humanities on Monday announced a new grant program to promote the publication of serious nonfiction, based on scholarly research, on subjects of general interest and appeal. Winners of the grants will receive stipends of $4,200 per month for 6-12 months. A statement from NEH Chairman William D. Adams said: “In announcing the new Public Scholar program we hope to challenge humanities scholars to think creatively about how specialized research can benefit a wider public.”
Last weekThe New York Times published a reproduction of a poison-pen letter that Martin Luther King Jr. received 50 years ago this month, a few weeks before he accepted the Nobel Peace Prize. A couple of passages in the screed suggest it was accompanied by audiotape of MLK in a hotel room, indulging in a round of extramarital recreation. King and his circle assumed that J. Edgar Hoover was behind the whole thing – a reasonable guess, since bugging a hotel room counted as a sophisticated surveillance operation in 1964.
Portions of the letter have been quoted by King’s biographers for years, and Hoover’s animus against King and the rest of the civil rights movement was obvious enough. But in her essay for the Times, Beverly Gage -- the history professor from Yale who found the original draft in the National Archives – underscores something that only shows through with the whole document in front of you. It might be called an element of psychosexual frenzy.
The note -- prepared by one of Hoover’s agents, but reflecting his own preoccupations regarding King -- purported to be from a disillusioned African-American supporter. MLK’s “alleged lovers get the worst of it,” writes Gage. “They are described as ‘filthy dirty evil companions’ and ‘evil playmates,’ all engaged in ‘dirt, filth, evil and moronic talk.’ The effect is at once grotesque and hypnotic, an obsessive’s account of carnal rage and personal betrayal…. Near the end, it circles back to its initial target, denouncing him as an ‘evil, abnormal beast.’ ”
All in a day’s work at J. Edgar’s FBI. The only thing surprising about the note is the lack of any charge that King was a Communist Party stooge. Hoover’s practice of collecting information on the sex lives of prominent individuals served the perfectly straightforward function of bolstering his personal authority, of course. And it worked: he served as the bureau’s director for almost 50 years, in part because he had the goods in his hands to derail any effort to replace him. But there is also a hint of voyeurism to the director’s “Official/Confidential File.” Blackmail is power -- and power, as someone once said, is the ultimate aphrodisiac.
The director only comes onstage about halfway through Jessica R. Pliley’s Policing Sexuality: The Mann Act and the Making of the FBI (Harvard University Press). It would be excessive to call Hoover a minor figure in the book, but it certainly displaces him from his familiar status as prime mover in the bureau’s history.
Pliley, an assistant professor of women’s history at Texas State University, begins a generation or two before the creation of the Bureau of Investigation in 1908 (the name was changed in 1935), with the stresses and strains of American society in the late 19th century that ultimately gave rise to one of the laws the bureau tried to enforce: the Mann Act, which made it a felony to transport “any woman or girl” across state lines “for the purpose of prostitution or debauchery, or for any other immoral purpose.”
The law, passed in 1910, now seems almost idiomatically peculiar: As with the decision to make alcohol, tobacco, and firearms the purview of a single law-enforcement agency, most people would have a hard time explaining the logic behind it. Pliley traces its roots to a series of moral panics in the United States over the changes induced by the country’s rapid expansion and urbanization. A growing national economy brought with it an expanded market for prostitution -- the horrors of which were summed up by 19th-century reformers as “white slavery.”
"[M]easures to reassert control over the American libido were always one or two steps behind the social changes -- and enforcement could never be much more than episodic."
That phrase expressed the moral fervor of the abolitionist spirit finding a new cause, while also carrying its share of racial overtones, especially in sensational accounts of blue-eyed girls servicing the lusts of nonwhite customers. The influx of immigrants was another concern. Women finding their way in a new country were especially vulnerable. But there was also the need to protect America's precious bodily fluids from the contaminating influence of foreign cultures, with their deplorably lax moral standards and unwholesomely exotic bedroom practices. (Despite the xenophobia, there was something to the last point. By the 1920s, any bordello trying to keep its clientele had to offer “the French,” i.e., fellatio.)
Urbanization and the automobile multiplied the temptations for other sins of the flesh, as well as the venues for committing them. The danger of a young woman being seduced and abandoned after false promises of marriage became more intense when parents knew that the cad might impregnate her in the rumble seat, then drive off to who knows where.
Pliley devotes most of the first third of her book to building up, layer by layer, a picture of the trends and anxieties of the period -- some of them overblown, but with enough examples from the legal record of women raped and then forced into sexual labor to show that it wasn’t all a matter of yellow journalism.
Pliley also discusses various laws and social campaigns that emerged in response -- efforts to shore up the norms by which sexual activity would be restricted to monogamous, legally married straight couples of the same race, who, while not necessarily born in the U.S., otherwise tried to make themselves as inconspicuous as possible. But measures to reassert control over the American libido were always one or two steps behind the social changes -- and enforcement could never be much more than episodic.
When Representative James R. Mann proposed the White Slave Traffic Act (soon to be known by his name) to Congress in 1910, its odd mandate reflected the effort to patch over some of the existing gaps in terms just broad enough to cover problems that ever-faster means of transportation were bound to create.
It met a little opposition. One Congressman expressed concern that “immoral purposes” was so vague that it might apply to horse racing and chicken fighting. Southern politicians were initially troubled that the law might infringe on states’ rights, but found themselves charged with a lack of concern with the protection of white womanhood, which settled the matter soon enough. President Taft signed the bill into law the day Congress sent it to his desk.
The burden of enforcing the Mann Act soon fell to the Justice Department’s recently formed Bureau of Investigation, which had a small staff and not much precedent for how to proceed. An early investigation seemed like a promising way to crack the organized traffic in prostitution between bordellos in Connecticut, Louisiana, and other states. But it turned out the hookers operated as free agents who traveled from bordello to bordello in a circuit. Customers, madams, and sex workers alike seem to have found it a reasonably satisfactory arrangement.
Pliely points out that the whole “white slavery” discourse rested on the idea that women wanted, more or less by instinct, to establish a monogamous relationship and start a family, and would only enter or remain in prostitution under threat of violence. But the interstate pimp ring that turned out not to exist suggested otherwise. The author shows that a great deal of the case load for agents in the early decades of the bureau pertained to cases of adultery where the lovers had fled the state. The aggrieved spouse could charge the adulterous man with violating the Mann Act, despite his paramour being perfectly happy with the situation. She had been taken “across state lines for immoral purposes,” though the investigation usually ended once she had agreed to return to her husband.
Thanks to the Great Depression, the bureau was able to enter the headlines for cases involving banks robbers and gangsters – and, a bit later, political radicals, as well as professional spies. But Pliley notes that in the late 1930s, Hoover (who joined the bureau in 1919 and became director five years later) reasserted the original understanding of the Mann Act as a measure against prostitution.
“The Bureau investigated only when the right person invited it,” she writes, “a father, a husband, or a male local law enforcement official. When the Bureau considered aggravated cases of sexual exploitation, it almost always conceived of prosecuting these crimes as defending the family (and concomitantly upholding men’s rights to control the sexuality of their dependents) rather than upholding an idea of female sexual sovereignty.”
It seems almost superfluous to mention the other implicit requirement: the man in question had to be white. The author names a few cases in which the complainant was of another color, but it seems that the most agents ever did was to fill out some paperwork, presumably to humor him.
None of this can really be attributed to Hoover, though. He executed the law, and enforced its biases, but they were established well before he joined the Bureau.
Policing Sexuality takes the story up to roughly America’s entry in World War Two, but I think the surveillance of MLK and the vicious letter from 50 years ago take on a new aspect in light of Pliley’s research. She directs our attention away from the director to the matrix in which the Bureau took shape. That challenges the habit of regarding the FBI as an institution shaped, and distorted, by his personality -- parts of which are expressed in the letter to King, written by a subordinate who knew what he wanted.
But the letter also echoes the concerns that Pliley finds in the Mann Act well before Hoover took power. Besides hostility to African-American advancement (one undercurrent of the "white slavery" theme), it expresses a fervent, one might even say deranged, aversion to sex outside of marriage. That Hoover shared these attitudes made him a perfect fit for the job. He thrived in it, and was good at it, although “good” isn't really how it looks from here.
The American Psychological Association will conduct an independent investigation into whether it colluded with the government concerning post-9/11 interrogation practices, The New York Timesreported. The investigation appears to have been prompted by new revelations about association staff members' involvement in shaping policies for psychologists involved in interviewing suspected terrorists during the Bush administration. The revelations appear in a new book, Pay Any Price: Greed, Power and Endless War, written James Risen, an investigative report for The Times. The association criticized Risen's reporting last month, but Risen said it didn't refute key claims.
An eloquent commentator once declared that the new communications technology “[had], as it were, assembled all of mankind upon one great plane, where they can see everything that is done and hear everything that is said, and judge of every policy that is pursued at the very moment those events take place.”
A trifle overblown, yes, but it’s held up better than many other rhapsodies and prophecies inspired by new media over the years. Nowadays we have too much perspective to believe that “mankind” can really “see everything that is done and hear everything that is said.” (Only people with access to the NSA servers enjoy that privilege.) But there is no denying the commentator’s clear sense of human experience speeding up -- with news and information moving faster than ever before, so that people would have to adapt, somehow, or else be crushed by the juggernaut of progress.
It happens that the far-sighted analyst here was Lord Salisbury, three-time prime minister of Britain, addressing the founding meeting of the Institute of Electrical Engineers in 1889; the technology in question was the telegraph. Judy Wajcman cites his remark in Pressed for Time: The Acceleration of Life in Digital Capitalism (University of Chicago Press), while criticizing the common idea “that our current ambivalence toward technological change has no precedent.” Wajcman, a professor of sociology at the London School of Economics and Political Science, gives the date as 1899, which is perhaps as much an echo as a typo: Salisbury’s comment sounds a bit like the techno-boosterism and globalization-speak common during the late ‘90s of the more recent century.
But for Wajcman, it’s the overtone of uneasiness that counts -- and she’s undoubtedly right to emphasize it, given the speaker. His Lordship was a rock-ribbed conservative who, it seems, once boiled his principles down to a pithy formula: “Whatever happens will be for the worse, and therefore it is in our interest that as little should happen as possible.” As a political strategy, that, too, sounds curiously familiar and contemporary.
Pressed for Time has at its core a paradox that will have occurred to most readers at some point: On the one hand, the technological innovations that come our way are designed to be efficient; they promise to save time and energy. In principle, the savings should add up, so that we’d have more of each. But scarcely anyone feels that they do add up. If anything, people seem to feel ever more harried.
The situation is genuinely paradoxical, since the technology really does tend to become faster and more efficient, and more Swiss Army Knife-like in near-universal applicability. By rights, we should all be enjoying what Wajcman calls “temporal sovereignty and sufficient leisure time,” and little more of each all the time. Yet the gizmos and apps are part of the problem, somehow. Indeed it often seems that they are the problem itself -- as if their speed and power set the pace, like a treadmill that accelerates when you walk faster, without ever slowing down if you can’t keep up.
Wajcman cites a study of Blackberry use among “corporate lawyers, venture capitalists, and investment bankers” who said, in interviews, that mobile email “enhance[d] their flexibility, control, and competence as professional workers.” But the seeming increase in personal autonomy canceled itself out through “the unintended consequences of collective use.” In other words, the advantage to an individual of being able to work and communicate whenever and wherever it was possible or convenient “also heightens expectations of availability and responsiveness” from colleagues, who also have continuous connectivity, thereby “reducing [one’s] personal downtime and increasing stress” by “escalating engagement with work at all hours of day and night.”
The “autonomy paradox” (as the researchers called it in a journal article) isn’t just for corporate lawyers, venture capitalists, or investment bankers anymore – or even for Blackberry users, that dwindling breed. It is the way we live now.
But as Wajcman digs into the conundrum, Pressed for Time questions some routine assumptions about technology and culture made by sociologists as well as everyday citizens of modernity. One is the tendency to think that technical innovation induces social change in a fairly linear and one-directional way: a relationship of cause and effect, if not of technological determinism.
Lord Salisbury’s thumbnail assessment of the telegraph is one example. The new communication system allows information to move across vast distances instantaneously, or close enough for the Victorian era. Its social impact (the whole world becoming aware of breaking events in real time) was the direct and almost self-evident realization of the potentials inherent in the technology. The difference between Salisbury’s remark to the engineers and what Wajcman calls “grand, totalizing narratives of postindustrial, information, postmodern, network society” is often one of idiom more than of substance.
The science and technology studies (STS) research informing Pressed for Time, by contrast, focuses on the system of relays and feedback loops through which technological innovation and social life influence each other. Understanding the impact of the telegraph on people’s sense of space and time means also considering another development of that era, long-distance railway travel. In the pre-railroad era, time was set locally: the same moment showing as noon on the clocks in one town or city might be several minutes earlier or later on timepieces a few miles away.
The variation had not been much of a problem until the advent of a regular railway schedule. (Note that nothing in the technology itself made timetables inevitable. But they were essential if the railroad was to serve as a reliable way to get products to market.) The telegraph was an important tool for synchronizing places separated by long distances, with Greenwich mean time eventually bringing “the world within one grid of time,” writes Wajcman, “uprooting older, local ways of marking [its] passage of time.”
We make use of tools, and they return the compliment. The chains of cause and effect are knottier than we habitually assume. But the author’s analysis of the time-pressure paradox also challenges the supposition that technological developments impinge on us all equally, or at least in uniform ways. But there are pretty tangible grounds for arguing that they don’t.
It's possible to sit through many a discussion of time-and-labor-saving devices without more than a passing reference to the washing machine. Somehow a device operating mainly in the domestic sphere – traditionally the responsibility of women, who studies indicate still do two-thirds of the (unpaid) work -- counts as having less social significance than, say, transportation or communications technology. “To most commentators,” Wajcman writes, “the history of housework is the story of its elimination.” But while the washing machine does remove most of the drudgery of cleaning clothes, its effect has been less to reduce the total amount of domestic labor than to change its nature and priorities: less time spent on laundry, more time driving the family vehicle.
The technological developments of the past couple of decades are usually lumped together as “the digital revolution,” though that’s starting to sound quaint. At some point the cumulative effect will make it very difficult to imagine that things could be otherwise. Wajcman delivers one sharp tap after another at the calcified interpretations that surround those changes. It leaves the reader with a clear sense that paradox of becoming trapped by devices that promise to free us follows, not from the technology itself, but from habits and attitudes that go unchallenged.
The tools we now have probably could be used to shorten the workday for everyone, for example -- but we’d have to want that and make some effort to realize it. Instead, being constantly “on the grid,” overstressed from work, and emotionally available to other people only during designated (and calibrated) “quality time” has become a kind of status symbol. Pressed for Time helps elucidate how things shaped up as they have. It seems less paradoxical than pathological, but Wajcman suggests, rather quietly, that it doesn’t have to be this way.
Our devices grow ever more efficient, but our lives only more hectic. Scott McLemee reviews a book on the paradox of digital temporality.
The number of new academic titles in the humanities published in North America increased from 48,597 in 2009 to 51,789 in 2012, according to a new update in the Humanities Indicators, a project of the American Academy of Arts and Sciences. At the same time, the humanities share of all new academic titles published fell during that time period from 45.1 to 42.9 percent.
It is difficult to recite “The Bells” by Edgar Allan Poe without sounding like an idiot. The first line is navigable without much trouble; the two lines near the close (“From the bells, bells, bells, bells/Bells, bells, bells --”) are just vocal calisthenics. But they return at the same point in the following stanza, with an additional three “bells” for good measure. By the fourth and final stanza, the word repeats twelve times in five lines, and dignity is just a memory.
In one of the harsher evaluations of Poe, the critic Yvor Winters complained about “such resounding puerilities as ‘the pallid bust of Pallas’ ” in “The Raven,” which he called “that attenuated exercise for elocutionists.” That may be, but “The Raven” invites and almost demands oral performance, which in part explains how quickly it became part of American vernacular culture following its publication in 1845. If ever a poem were destined for recitation by James Earl Jones, it is “The Raven.”
In his new book The Poet Edgar Allan Poe: Alien Angel (Harvard University Press), Jerome McGann points out that “The Bells” once served as “an experimental challenge for one of the [Victorian] period’s favorite pastimes, spectacular recitation.” That to some degree mitigates the impression that “The Bells” is, as a poem, a disaster: sufficient grounds for Emerson’s brutal dismissal of Poe as “the jingle man.” It is possible “The Bells” was Poe’s effort to make lightning strike a second and more financially rewarding time (“The Raven” was wildly successful, but he’d sold it for $9), but more important for judging the poem is knowing that it embodies a performative and even competitive aesthetic that simply isn’t part of how we read it now.
Assuming, that is, that we read his poetry at all, beyond middle school. Poe’s fiction looms much larger in contemporary literary culture, and it remains a significant part of popular culture as well. Quantifying such things is hard, but it’s telling that for every book-length study of his poetry that has been published, there are three analyzing his fiction. Emily Dickinson and Walt Whitman figure as the American poets of his era whose influence continued and deepened over time. By contrast Poe’s language and form appear conventional, even when his poetry ventures into realms of madness and erotic obsession – like Longfellow, except morbid. (And to that degree, perhaps, more interesting.)
McGann, a professor of literature at the University of Virginia, rejects that assessment, root and branch. McGann’s early criticism focused on Lord Byron, Dante Gabriel Rossetti, and Algernon Swinburne, but over the past couple of decades he has been a thoughtful advocate for the digital humanities; his most recent book on that front, published earlier this year, is A New Republic of Letters: Memory and Scholarship in the Age of Digital Reproduction, also from Harvard. Besides advocating digital scholarship, McGann has been a practitioner of it, as exemplified by his work on The Complete Writings and Pictures of Dante Gabriel Rossetti: A Hypermedia Archive.
So it comes as a surprise that in his book on Poe’s poetry McGann returns to a vein of critical writing that seems, if not old-fashioned, at least indifferent to today’s modes of focusing (or splintering) attention. The Poet Edgar Allan Poe is, among other things, a response to that take-down by Yvor Winters mentioned earlier – an essay appearing in the journal American Literature, all the way back in 1937.
Winters was comprehensively dismissive of Poe’s work as a whole, calling it “an art to delight the soul of a servant girl” and professing “astonishment that mature men can take this kind of thing seriously.” But the expression of chauvinistic snobbery was incidental to Winters’s more basic objection to Poe’s sensibility – his understanding of what literature was, and should be. He charged Poe with believing that “the subject matter of poetry, properly considered, is by definition incomprehensible and unattainable; the poet, in dealing with something else, toward which he has no intellectual or moral responsibilities whatever … should merely endeavor to suggest that a higher meaning exists – in other words, should endeavor to suggest the presence of a meaning when he is aware of none. The poet has only to write a good description of something physically impressive, with an air of mystery, an air of meaning concealed.”
Winters quotes passages from Poe’s correspondence and literary criticism that seem to corroborate this portrait of Poe as a shallow dandy -- babbling about Beauty and contemptuous of Truth, turning out literature at a self-trivializing remove from any concern with real life or meaningful values.
Winters calls this attitude “obscurantist.” And clearly Poe is not the only offender he has in mind. T.S. Eliot is a likely example of who he’s implicitly attacking -- and Winters makes the overt suggestion that Poe’s outlook was also typical of Hart Crane, who had killed himself just a few years earlier. Aestheticism yields nihilism, then suicide.
Talk about a symptomatic reading…. Jerome McGann goes over many of the same passages Winters adduced in his bill of complaints against Poe, considering them alongside numerous lesser-known writings as well as Poe’s literary models, especially Shelley, Byron, and Coleridge. From a close reading of Poe’s rhetorical tropes and careful reconstructions of context, McGann draws out a much richer understanding of Poe’s perspective on art and life than Winters’s polemic allows.
“Affect is summoned into and then driven from the poems,” McGann says, “and, like an exorcised demon, set free to enter and take possession of the reader. … His poetry does not propose a compensation for the loss of loved and cherished things, it tells a double truth about those losses: first, that they lie beyond redemption; and second that they need not — indeed, must not — lie beyond a ‘mournful and never-ending remembrance.’ For memory is called to cherish even the factitious world.”
For it’s the only world the reader’s got – and not for long, at that. Those losses, and mournful recollections, take place against the backdrop of a teeming and bustling 19th-century America, with no prospect of anything but acceleration ahead. “That,” McGann says, “is the ultimate meaning of Poe’s mortally immortal word ‘Nevermore’….”
Unlike the figure Winters portrayed, McGann’s Poe doesn’t settle for poetry as delicate noises composed somewhere beyond real life; he doesn’t shirk the effort to find and express meaning. The argument is compelling, although McGann’s enthusiasm for “The Bells” seems pushing things too far.
About “The Bells,” I think the best thing you can do is repeat Mark Twain’s considered opinion of Wagner’s music: “It isn’t as bad as it sounds.”
Sixty years ago this month, the U.S. Post Office declared a small journal called ONE: The Homosexual Magazine, published in Los Angeles, to be obscene and thus unlawful to distribute through the mail. All copies of the latest issue were seized and presumably destroyed.
The editors -- having already endured a letter-writing campaign from the Federal Bureau of Investigation that tried to get them fired from their day jobs -- cannot have been that surprised by the postal service’s move. Still, the characterization of ONE as “cheap pornography” (in one judge’s words) was ludicrous. Recent issues had included articles on police entrapment, Walt Whitman, and attitudes toward homosexuality in Britain throughout history. The editors also published a sonnet by William Shakespeare and a salute to the “history-making TV appearance [of] Curtis White of Los Angeles [who] personally stated that he is a homosexual.”
By no stretch of the imagination was it fair to call ONE obscene. At worst, it was feisty. But that was much the same thing at a time when “homosexuals were virtually without constitutional rights,” as Walter Frank put it in Law and the Gay Rights Story: The Long Search for Equal Justice in a Divided Democracy (Rutgers University Press). The turning point came when the Supreme Court overruled the USPS ban on ONE in 1958. The decision was little-noticed at the time -- and it doesn’t even register as a blip in the general public’s historical memory, in which the gay rights struggle began, more or less, with Stonewall.
The Supreme Court decision ran to one sentence and cited the Court’s ruling in Roth v. United States, two years earlier. The author of Law and the Gay Rights Struggle is co-chair of the Law and Literature Committee of the New York County Lawyers Association, and takes for granted closer familiarity with Roth v. U.S. than most non-jurists will possess. (I could have told you that the plaintiff was Samuel, a publisher of girlie magazines, and not Phillip, the novelist -- though not much more.) But upon looking up the decision, it’s fairly easy to spot what has to have been the crucial passage with respect to ONE:
“Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scientific works is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.”
That it is. And a major strategy of early gay-rights advocates was to insist on the “absorbing interest to mankind through the ages” part with respect to same-sex desire. (Hence the Shakespeare sonnet in ONE.)
Frank’s purview is narrower, and a lot more democratic. He focuses on the seven decades following the end of World War II – a period in which the struggle for equality moved ever more in the direction of grassroots activism and demands for respect in everyday life. Identifying the illustrious gay dead gave way to more mundane but urgent priorities, like securing hospital visitation rights and protection from housing discrimination.
About half of Law and the Gay Rights Story consists of a succinct overview of how gay and lesbian communities and institutions took root within, and against, “a society that had simply decided to place certain people beyond its protection.” In a provocative formulation (I mean that in a good way) Frank writes that “discrimination itself could remain in the closet because gays themselves were not willing to come forward in sufficient numbers or with sufficient energy to contest it.”
A couple of generations of historians have studied how that situation changed – how the numbers and energy accumulated, and began to make a breach in a system that had effectively limited gays and lesbians to two choices, celibacy or criminality. Frank draws on and synthesizes the social and cultural historians’ work without claiming to go beyond it.
He does build in a distinctive periodization, however, by dividing the past few decades of gay-rights struggle into three phases or waves. The first and longest subsumes everything from ONE to Stonewall to the assassination of Harvey Milk: a cycle of growing confidence and assertiveness, coming to an end around the point when reports of a “gay cancer” emerged in 1981. His second period is defined by the AIDS crisis, in which government neglect and anti-gay political sentiment made the gay struggle largely defensive. A third wave, beginning in the early 1990s and continuing through the present, has seen something of a revival of the first period’s vigor but an even more remarkable growth of acceptance of claims for legal equality -- with the Supreme Court defining as unconstitutional both anti-sodomy laws and the Defense of Marriage Act’s definition of marriage to exclude same-sex couples.
In recent years, Frank writes, “concepts of freedom and equality began to overlap in a way they did not in the first phase, when gays were fighting for the right to celebrate themselves without fear and to be allowed some measure of dignity…. The equality that gays have been fighting for in this [most recent] phase concerns all the freedoms that most people take for granted, including the freedom to marry. As that argument has taken hold, the tide of public opinion has shifted, and with it the terrain on which the battle has been fought.”
In other remarks, the author seems perfectly aware of the potential for backlash. Consider the point of view expressed by a voter regarding an anti-gay ballot initiative: "I don't think being gay is right. It's immoral. It's against all religious beliefs. I don't agree with gays at all, but I don't think they should be discriminated against."
Frank cites this arresting blend of sentiments in a context suggesting that it demonstrates a slow growth of tolerance in seemingly inhospitable circumstances. That's one way to look at it. But politics is always a struggle to shift the terrain on which the battle is being fought, and reversals do occur. That said, I'd like to imagine that the person who contributed to ONE under the name Herbert Grant is still alive and well. In 1954, he wrote an article that might well have been the last straw for the authorities. In it, he proposed that same-sex couples be allowed to marry.
In Friday’s decision in Cambridge University Press v. Patton, the U.S. Court of Appeals for the Eleventh Circuit followed decades of jurisprudence in casting aside bright line rules for determining whether faculty made fair use of copyrighted material. This is regrettable, as the celebrated 2012 district court opinion in the same case had opened up the possibility of teaching faculty how to properly make fair use of material using plain terms and easy-to-understand concepts, while the appeals court opinion returns us to the days of case-by-case holistic analysis and detailed exceptions, loopholes, and caveats.
The case revolves around a challenge by several companies that published non-textbook scholarly works to Georgia State University’s electronic reserve systems, wherein faculty and librarians would scan in excerpts of books for students to access digitally, a technological improvement over the traditional practice of leaving a copy or two on reserve at the library circulation desk. The publishers claimed mass copyright infringement while Georgia State cited the fair use provisions of Section 107 of the Copyright Law.
The district court exhaustively analyzed each work uploaded to electronic reserves, finding only five in violation out of the dozens submitted by the publishing companies, by taking a new twist to the law’s four factors for analysis:
The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
The nature of the copyrighted work;
The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
The effect of the use upon the potential market for, or value of, the copyrighted work.
Traditional fair use analysis calls for a case-by-case analysis of each potential use, independently weighing the four factors holistically, which is difficult and often requires knowledge of unavailable facts (such as the effect on the market of the work, which is nearly impossible for those outside of the company to guess at). (For instance, the Supreme Court in Campbell v. Acuff-Rose Music, Inc. specifically discarded any use of “bright line rules” for determining fair use of copyrighted material.)
Judge Orinda Evans went a different route. She found that de minimis use (such as when a faculty member posts a work but no student ever accesses it) is not a violation, and that in most cases, using one chapter or 10 percent of a book that is under copyright protection would meet the fair use test. The judge decided to clearly assign winners in each of the four factors, and then give the overall win to the party with the majority of factors in their favor.
She wrote that factors one and two almost always went in favor of nonprofit higher educational use of academic works. While a determination of factor four may be difficult for a faculty member to determine, and would likely go in favor of the publishers, the judge ruled that 10 percent or one chapter of a work that is digitally available would meet the fair use test for factor three. Adding factors 1, 2, and 3 together let her find a majority and, thus, fair use, even without factor four.
Note that these findings were for those works that could be purchased digitally. In another section, the judge applied some behavioral economics to factor four by finding that for those works that a publisher did not make available digitally, a faculty member could use approximately 18 percent of the work and still win a fair use analysis. That larger limit of factor 3 could encourage publishers to make their works available at reasonable prices, so as to discourage fair use without remuneration.
This was a groundbreaking opinion that allowed intellectual property lawyers in higher education to clearly explain to administrators and faculty members which uses would and would not be fair. Rather than require our botany and geography professors to also become copyright scholars, we could provide them with reasonable tests to ensure they properly balanced the interests of students in accessing the content with the interest of publishers in compensation for developing the content. While this wasn’t the first effort to develop fair use standards, it was the clearest, and the first time that such standards were set by a court.
The appeals court rejected this analysis and found that the “District Court did not err in performing a work-by-work analysis of individual instances of alleged infringement in order to determine the need for injunctive relief. However, the District Court did err by giving each of the four fair use factors equal weight, and by treating the four factors mechanistically.”
The appeals court instead called for a return to the holistic analysis. Rejecting the 10 percent or one chapter bright-line rule, the appellate court wrote that “the District Court should have performed this analysis on a work-by-work basis, taking into account whether the amount taken -- qualitatively and quantitatively -- was reasonable in light of the pedagogical purpose of the use and the threat of market substitution.”
The appeals court decision stands on solid precedential ground, and it is not the first court to call for a holistic and case-by-case analysis. While one can defend that decision by looking to the past, the decision is a poor one for those who look to the future. As content becomes more available in varying formats, and our faculty, staff and students are faced with myriad opportunities to pay for content, make fair use, or violate copyrights of authors and creators, the presence of clear standards and easily digestible rules provided higher education with a fighting chance to educate our academic community and encourage proper balancing and fair (but not inappropriate) use of content.
William Patry and Melville Nimmer, the two seminal thinkers in copyright law, each devote hundreds of pages to explaining copyright law. Their sets of volumes, which cost thousands of dollars, provide a comprehensive analysis of fair use and all of its details. But these books and detailed analysis are well outside the scope of what we expect of our faculty members who do not specialize in intellectual property, and our instructors simply do not have the time to conduct an exhaustive analysis of each use, even if they did take the time to learn all the permutations of the fair use analysis. This isn’t to say that they can’t, but to state the reality that they won’t.
Frankly, the dueling decisions in these cases, and the numerous articles and statements by serious copyright scholars on both sides of this analysis, show that even those who steep themselves in the details of fair use can disagree on whether a certain use is fair or violative.
When intellectual property law experts cannot agree, we should not expect our history and math faculty to do justice to the fair use analysis each time.
Instead, faculty will divide into two camps. One group will “throw caution to the wind” and use whatever content they wish in whatever form they desire, hoping never to raise the ire of the publishing companies.
The other, out of an abundance of caution, will self-censor, and fail to make fair use of content for fear that they might step over a line they cannot possibly identify, and can never be certain of until a judge rules one way or the other. Either way, our students and the publishers lose out.
The district court opinion shed some light into the murky swamp of fair use analysis. The Eleventh Circuit opinion dims that light, and threatens to return us to a regime wherein faculty who are not experts in copyright law will either use without consideration of the law or self-censor, diminishing the utility of the concept of fair use.
The Constitution teaches that the purpose of copyright is to “promote the Progress of Science and useful Arts.” The district court opinion found that small excerpts available to students “would further the spread of knowledge.”
Arming faculty with clear rules and standards to properly balance fair use of content would go a long way toward achieving this goal.
Joseph Storch is an attorney in the State University of New York Office of General Counsel. The views expressed here are his own.