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 | Standing Firm, Authors of Alms for Jihad Secure Rights to Their Banned Book
The authors of the book Alms for Jihad, which was pulped and put out of print by Cambridge University Press (CUP) after a Saudi sheik filed suit for libel in the United Kingdom, have regained their rights to the book. Co-author Robert O. Collins told the Library Journal Academic Newswire that the authors yesterday returned to CUP the signed copy of the rights reversion agreement that grants them back their copyright, opening the door to a new edition of the book. "We intend to reprint," Collins proclaimed, noting that the authors are now talking with potential publishers.
In addition, the case has gotten the attention of government officials here in the United States. Collins reports that he spent most of last week in Washington, DC, at the invitation of Congressman Frank Wolf (R-VA), where he addressed "some 20 senior figures from law enforcement, the intelligence community, and homeland security," on the entire affair. "Evidently, the government has been following this case in order to defend the rights of its citizens to write and publish without fear of Islamist intimidation," Collins noted.
Also yesterday, Collins published his account of the "sordid and sorry saga" in an editorial on the History News Network web site. Collins reported that CUP sent letters to "280 libraries around the world asking them to withdraw the book or insert an erratum slip" and "pulped 2,340 existing copies." CUP also agreed to make a monetary payment and issued a stunning public apology. The authors, however, have flatly refused to be part of any settlement. Collins repeated his and co-author Millard Burr's defense of their book. "Alms for Jihad had been meticulously researched, our interpretations judicious, our conclusions made in good faith on the available evidence," Collins wrote.
In a move that has garnered significant media coverage worldwide, CUP quickly acquiesced to a libel suit threatened in England by Sheikh Khalid bin Mahfouz, whose charitable activities have reportedly been linked to funding terrorist activities. While CUP has taken its share of heat for their capitulation, Collins reiterated that "the crux" of the issue resided in English libel law, "which is very narrow and restrictive compared to its counterpart in the United States," where works are "protected by the First Amendment, absent in English jurisprudence."
Collins conceded that CUP most likely could not have won the libel suit in the United Kingdom. However, he stressed that Mahfouz's use of British law to suppress scholarship cannot prevail. "The Shaykh can burn the books in Britain," Collins wrote, "but he cannot prevent the recovery of the copyright by the authors nor their search for a U.S. publisher to reprint a new edition of Alms for Jihad for those who have been seeking a copy in the global market place."
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Patriot Act: Judge Rules National Security Letters Unconstitutional
A federal judge last week declared unconstitutional the FBI's use of warrantless National Security Letters (NSL) under the USA Patriot Act to obtain information from electronic service providers (ESPs). In a sharply-worded rebuke, New York-based U.S. District Judge Victor Marrero called the FBI's use of NSLs an "ominous free pass to the hijacking of constitutional values." Specifically, Marrero ruled that the use of NSLs and the gag orders that prohibit those served from discussing them violated the First Amendment. "The risk of investing the FBI with unchecked discretion to restrict such speech is that government agents, based on their own self-certification, may limit speech that does not pose a significant threat to national security or other compelling government interest," Marrero wrote.
Indeed, the Department of Justice Inspector General reported in March that the FBI, in pursuit of some NSLs, had sought personal data without proper authorization and improperly obtained telephone records.
The ruling marks the second time Marrero has ruled against the FBI's use of NSLs. The case Doe v. Gonzales was first filed in April 2004 on behalf of an "anonymous Internet access company." In September 2004, Judge Marrero struck down the Patriot Act NSL provision as unconstitutional, a ruling the government appealed, but Congress amended the NSL provision before the court could rule on the appeal. In May 2006, the Appeals court asked Marrero's District Court to consider the constitutionality of the amended law, which Marrero again found insufficient. His latest ruling bars the use of NSLs to demand information from ESPs. That ruling, however, will not go into effect for 90 days in order to give the government time to appeal, which is expected.
The American Library Association (ALA), an early and vocal critic of the Patriot Act, applauded Marrero's ruling. "The decision that the gag order is unconstitutional is a clear victory for those disturbed by the lack of judicial oversight in the NSL process," said ALA president James Rettig. "The decision affirms civil liberties." At its Annual Conference, held in Washington, DC, ALA passed a resolution calling on Congress to reform the NSL provision.
Melissa Goodman, a staff attorney working on the case for the American Civil Liberties Union (ACLU) said the ruling acknowledged the need for "real, meaningful judicial checks" on executive power. "Without oversight," she explained, "there is nothing to stop the government from engaging in broad fishing expeditions, or targeting people for the wrong reasons, and then gagging Americans from ever speaking out against potential abuses of this intrusive surveillance power."
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| Breakthrough? In Ruling, Court Acknowledges Changed "Contours" of Copyright
The 10th Circuit Court of Appeals last week remanded to District Court a copyright case that restored copyright protections to works that had previously passed into the public domain, ruling that the removal of works from the public domain represented a change to the "traditional contours of copyright protection." On his blog, Stanford University professor Lawrence Lessig hailed the unanimous ruling as "a very big victory," and said that the ruling in Golan v. Gonzales could set the stage for a Supreme Court review of another case, Kahle v. Gonzales, that holds major implications for orphan works and the public domain.
Golan v. Gonzales was filed in 2001 on behalf of Lawrence Golan, director of Orchestral Studies, conductor, and Professor of Conducting at the University of Denver's Lamont School of Music. Golan contended that a copyright provision of the Uruguay Round Agreements Act (URAA) removed many foreign works from the public domain and granted them "restored" copyrights, a move with significant First Amendment implications.
The 10th Circuit agreed. Its ruling affirmed that removing works from the public domain was a departure from Congress' traditional role in copyright law and, as voiced in the 2003 Eldred v. Ashcroft Supreme Court case that challenged the Copyright Term Extension Act, changes by Congress to the "traditional contours" of copyright law warrant a First Amendment review.
"The rule of Eldred, as interpreted by the 10th Circuit (and by us) is that Congress gets a presumption of First Amendment constitutionality when it legislates consistent with its tradition," explained Lessig. "But when it changes that tradition, its changes must be scrutinized under the First Amendment." Writing for the Court, Judge Robert Henry said that in passing the URAA, Congress "transformed the ordinary process of copyright protection and contravened a bedrock principle of copyright law that works in the public domain remain in the public domain."
The Golan decision could now influence the Supreme Court to review Kahle v. Gonzales, a lawsuit brought by Brewster Kahle and the Internet Archive. "I suspect [the recent 10th Circuit] decision will weigh heavily in the Supreme Court's determination whether to grant review in the Kahle case," Lessig suggested. "In Golan, the issue is a statute that removes work from the public domain….in Kahle v. Gonzales, the issue is Congress's change from an opt-in system of copyright to an opt-out system of copyright. That too, we have argued, is a change in a 'traditional contour of copyright protection.' Under the 10th Circuit's rule, it should merit First Amendment review as well."
Among its challenges, Kahle v. Gonzales addresses Congress's 1976 copyright law that eliminated the need to register for copyright. That change, Kahle argues, has since created an entire class of "orphan works," works whose copyright owners are either unknown or unidentifiable, thus rendering the works unusable and thereby infringing free speech. Both the District Court and the 9th Circuit Court of Appeals, however, have rejected Kahle's arguments, leaving only the Supreme Court.
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| Presidential Library Bills Stall in Senate
It appears that the announcement of the George W. Bush library going to Southern Methodist University (SMU) isn't the only presidential library initiative facing delay. According to a report in the Dallas Morning News, legislation that would require disclosure of those donations of more than $200 to presidential library campaigns has stalled in the Senate, as has a bill that would overturn Bush's controversial executive order 13233, which allows ex-presidents and their heirs to indefinitely block release of papers they deem sensitive.
Both measures passed the House overwhelmingly in March. But with a full agenda and a presidential campaign underway, there is little hope the bills will make their way to a vote in the Senate this year. The Dallas Morning News reported that no senator has championed either bill, and when majority leader Harry Reid was asked if the bills could see a vote this year, he "shrugged his shoulders." The Bush library effort has raised eyebrows and inspired disclosure legislation because of its projected cost, said to be as much as $500 million. The Clinton library, in contrast, the most expensive presidential library to date by far, cost $165 million.
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Library Journal Academic Newswire
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