|
Most forms of property
rights can be "abandoned" if left unclaimed. Under the 1909 US
Copyright Act, for instance, you have to claim more than authorship, you
have to claim a copyright otherwise written material defaults to the
public domain once it becomes "available to the public." Given
that we have a lot of evidence that the Course (or parts thereof) was made
"available to the public" without restrictions as far back as
1969, and massively in the summer of 1975, before the copyright was
registered in December 1975, there is an argument that Helen gave up the
right to a copyright before it was applied for. Judge Sweet has noted that
argument rests on a "finding of fact" as to whether there really
was such pre-copyright distribution.
So many authors
inadvertantly lost their right to copyright things by not knowing how that
law worked prior to 1976 that the law was changed such that the default is
no longer "public domain unless a copyright is claimed" but
"copyrighted unless you explicitly put it in the public domain."
Given an originally
valid copyright, under the principle of estoppel, if you don't enforce
rights, they eventually become enforceable.
Copyright holders
normally require that you ask permission for any use of material beyond
"fair use" limits [which aren't precisely defined]. Copyright
holders normally grant permission for any use that is not a commercial
threat to them, and in the latter they normally grant permission for a
price. The reason this is so is simple. It is usually in the commecial
interests of the copyright holder to have the material widely quoted or
even published by others in return for a royalty. It's "free
advertising" and "free marketing" which enhances income.
Of course a
copyright holder has the right to decline requests for permission. It's
rather like a hotel can refuse to rent you a room but very rarely would do
so since its business is to rent rooms!
Our little problem
here began in 1996 when FIP sold "exclusive rights" for five
years to publish the Second Edition to Penguin for US$3 million. That's
rather like a hotel owner renting all his rooms to a group for a period of
time. Until that time is ended he can't rent you a room without the
permission of that group.
In essence, Penguin
"rented" the FIP copyright, or most of the commercial rights
associated with that copyright, which placed legal limits on what
"permissions" FIP could, for that period, grant to others.
Almost immediately the lawsuits began, with Penguin initiating the legal
action against Endeavor for infringing its "exclusive rights."
Just what role
Penguin has played in this controversy, nor what role Ken wished Penguin
to play is not 100% clear to me. Neither Ken nor Penguin are liable to
tell me. I have been told that in 1997 Ken expressed annoyance with
Penguin for not pursuing EA vigorously enough. It is possible that he
wished for Penguin to be "the heavy" in clearing up several
"copyright questions" so as to distance himself from the bad PR
of suing people. I certainly can't prove that's the case right now, but it
is one possible explanation. Ken may have thought, as many others have,
that EA's infringements were so blatant and obvious that getting a court
order to stop them would be simple, quick and cheap if EA didn't
voluntarily change their tune with a mere threat from Penguin.
At the time, I don't
think anyone doubted the copyrightability of the Course, the validity of
Helen's original copyright, nor the "fact" that what was
published contained "virtually no changes" from what was
originally dictated. EA did not originally contest the validity of the
copyright nor even the desirability of a copyright, but rather it
contested what it viewed as unfair and legally indefensible restrictions
on "fair use" of the material in classrooms in the Academy. It
also argued that it's very small volume reproductions of small parts of
the Course which were never offered for sale were not a commercial threat
to Penguin, FIP, or FACIM, but actually encouraged sales of the "blue
book"
and should, *reasonably* be permitted if the copyright holder were judging
by "commercial standards." EA argued that since many other
groups were permitted to do with the Course pretty much the same as EA was
doing, EA was being discriminated against for religious reasons in
violation of the US First Amendment.
With that sort of
defence, the case ceased to be a "cut and dried."
As time went on EA's
lawyers discovered other defences to offer, and other weaknesses in the
Penguin case, raising the question of pre-copyright distribution and
pressing the question of "discrimination." FIP was drawn in, FIP
sold/transferred the copyright to FACIM in March of 1999 and then in April
of 1999 the general crackdown began, with many groups and individuals
working with the Course on the net and elsewhere receiving solicitor's
letters suggesting they were doing something illegal for which they needed
permission from the copyright holder.
Inside sources at
FACIM have indicated that a central motive for that policy was EA's
defence of discrimination. To show that there was no discrimination, it
appears, Ken was advised to be as restrictive with everyone as he was
being with EA, advice he appears to have accepted.
Then the official
statement emerged from Ken that in order to preserve the copyright intact,
everyone had to observe highly restrictive policies which were never
formally stated. That statement is a bit misleading if not completely
false. In fact Ken could grant permission to just about everyone who asked
subject to Penguin's approval. That would preserve the copyright against
"estoppel" and that would preserve it's commercial value (apprasied
at US$2.8 million in 1998). What that would not do is enable the lawsuit
against EA to be won. Then it would again be obvious that Ken was
targetting EA, not because of its unusual copyright activities, but for
other reasons.
I believe that these
factors have significantly influenced the choices made by various of the
key players in the nearly five years of litigation. I believe that a main
reason why this particular copyright is so enormously controversial
relates to the fact that the primary motives of many of the key players
are not commercial, have almost nothing directly to do with copyright law,
but relate to what might be called "religious warfare."
I don't think any
observer of this drama has failed to notice the rivalry between Ken's camp
at FACIM and Master Teacher's camp in Wisconsin. While most people
involved aren't formally associated with either in any way, that rivalry
is the primary backdrop of and explanation for the
*severity* of this
particular copyright problem when combined with the fact that in the view
of many people this book is no ordinary book and the moral, if not legal
authorship claims are open to a great deal of dispute.
At several points in
the past few years, notable members of the Course Community, some of whom
have been long time personal friends of Ken, have attempted to
"mediate" or offered very reasonable, moderate plans to resolve
the problem. Such plans generally called for the commercial rights of the
copyright to remain in Ken's hands while moving the "policing"
of the copyright, or quetions about permissions to be handed by some
person or group other than Ken. This "third party" would come up
with formal policies based on legal advice and administer those policies
with an even, judicious hand. Such a move would remove the 'religious
warfare' or rivalry aspects of the problem from the question of copyright
per se.
Such plans, on their
surface, appear to be very difficult for any reasonable person to take
exception to. They would answer the commercial concerns of Ken's plus his
oft-stated concern over the "purity and integrity" of the Course
in that the "permissions policy" would ensure that any quoting
of the Course be accurate and properly cited. Such plans would give
everyone else clear and reasonable guidelines for using Course material
and a fair and unbiased adjudicator to evaluate requests for permssion.
While there are some who would argue that no such "policing" is
really needed, were such a plan adopted it's likely that 90% or more of
the objections to Ken's policies would be answered by it. It probably
would result in most requests being granted, even-handed and fair
treatment for everyone, and end of all the lawsuits, better publicity and
sales for the Course, more quoting in books about the Course, with
permission, etc. Sales would go up, legal fees would go down, the
copyright's continued existence would be ensured, authors quoting the
Course would know what the rules are rather than having to guess, so
everyone seems to win.
But Ken has flatly
rejected all such proposals. An historian might well argue that this is
evidence that Ken's purpose has more to do with maintaining arbitrary
personal control and "suing EA into submission" than any
legitimate concerns about copyright or the accuracy of Course quotes.
Then in January
2000, the HLC was released on the net and last week portions of the Ur
showed up.
The HLC's discovery
was a direct result of the first lawsuit and the search for evidence of
pre-copyright publication. The HLC is such evidence and while Ken contests
the point, it also appears to be rather clearly a public domain document.
Without the lawsuit no one would have bothered going to look for it
because no one even *suspected* that in content, it would be significantly
different. Following the HLC's release on the net a number of groups
around the world prepared small press runs of print versions, believing
the material to be public domain. One of those, CIMS, was sued by Ken,
placing that question before the courts.
A direct result of
that suit was the discovery that the Ur, original Notes, and a good deal
of other material relevant to the early history of the scribing, was all
available at the US Copyright Office for anyone to inspect and all
potential litigants to obtain *legal* copies of. Once again massive
differences are found between the text of the older versions and those
previously widely known.
The legal
technicalities, which appeared rather straightforward in 1996, and grew
massively in complexity as the first suit progressed, have now become
mind-boggling. Even the lawyers scratch their heads and come up with
widely different views on the legal situation in the USA with regard to
the notes and the UR. What the legal situation is in any other country is
an even more complex matter.
Whether any of this
material is legitimately copyrighted in the first place or public domain
is disputed. How "fair use" provisions interact with apparently
conflicting Copyright Office regulations in the USA appear something only
Solomon could figure out. The Copyright Office says that copies can only
be used "in connection with proposed or actual litigation." Fair
use in copyright law allows for broader, though still limited use. How a
court might define "in connection with litigation" in practice
is anyone's guess.
Again, Ken could
solve the problem by making all the material avaialable under certain
clear and reasonable conditions. In the Internet Era he can't practically
suppress the material. If reasonable access is not allowed, it is certain
that some people will feel morally justified or even obliged to make the
material available, at least on the net. Whatever you think of such
people, they exist, and they will do it. That's as certain as the sun
coming up tomorrow. Attempts to suppress material that significant numbers
of people are interested in always fail unless ALL copies are destroyed or
placed under armed guard. Like any secret, it ceases to be secret once
someone blabs.
Trying to fathom the
motivations for Ken's policies and decisions is a bit like gazing through
deep fog. We have a very few public statements from Ken, we have the
depositions, and we have Joe and Rebecca presenting the Wapnick line, if
perhaps somewhat unofficially. The latter's arguments are the best clues
available as to what Ken's thinking.
It appears to this
observer that hostility toward EA and others who interpret the Course
differently than Ken is intense. There are many statements from our
sources reflecting the idea that the "Thought System"
of the early versions of the Course differs markedly from that of the 1975
Shuchman/Wapnick edit on which the primary copyright was registered. This
is a view shared by many who have looked at the HLC and the earlier
material - that far from "virtually no changes" we have a
radically different metaphsysical viewpoint. Given this "different
metaphysics"
between the original dictation and the later abridged version, the
question is raised as to whether the abridgement was, as Ken declares, a
"correction" or as others tend to feel a "corruption."
This idea of
difference between the early material and the later material is a point of
agreement between both poles of the debate. I think we can accept the fact
of difference as "fact."
What we end up with
then is a rivalry between the two "Thought Systems"
with some people feeling the one is more "divine" and others
preferring the other. This is a religious or theological dispute and it is
not the sort of thing courts of law are very good at dealing with. Trying
to sort out copyright claims that are really about religious differences
is a legal problem of Solomonic proportions.
Ken's desire appears
to be to suppress that "other" Thought System, a desire that
goes back to his first reading of the Course in 1973 and his work with
Helen to alter the Thought System of the original into one he and she felt
was in some way better. Central to that question is another question of
"faith" - that question being authorship of the original and the
abridgement.
The story is that
Helen heard the voice of Jesus and took notes, read them to Bill, and Bill
typed them up. Helen had little understanding of much of the content as it
was coming, it came as words and not fully formed complex ideas which she
put into her own words. It does not reflect her writing style or way of
thinking, but appears very much to be a very different personality and
intellect and "Voice." And so she always said it was. This is
typical of the best channeling. The channeler has little idea what is
being said or is going to be said until after it is said whereupon s/he
views it as an observer the way everyone else does and makes of it what
s/he can.
The
"Voice" directed Bill to do the editing for public presentation.
Some very personal, and often sexual material was to be removed. Many
specific changes in the earlier notes were dictated by the voice in the
later notes, referring to "Scribal error."
Then, Bill did as
directed, chopped down the total, put in chapter and section breaks,
removing mostly the personal material.
That's the HLC.
Then in 1973 Ken and
Helen, after studying the material, made enormous changes without aid of
Helen's "voice." It was Ken and Helen as professional editors,
re-working the material, mostly in the early and most crucial section.
What's at stake
really is the credibility of that editing, for Ken. If it should be found
wanting Ken's entire role in the Course's history, from day one, is
essentially discredited. The idea that he and Helen were closely directed
by Jesus in the editing is central to the "Wapnick Myth."
Should that myth be dispelled, what does poor Ken become? From the
"Official Teacher" and the "only one who really understands
the Course" he becomes, in Course history, the dumbass intellectual
who completely misunderstood it, corrupted it, and then peddled it for
personal profit, working hard to suppress the original and misrepresent
and cover up what really happened in the editing.
Without answering
the question of whether Ken's work in editing was really directed by Jesus
or not, was correction or corruption, we can see that a GREAT deal is at
stake for Dr. Wapnick's ego in the answer to that question!
What Ken is fighting
for is not a copyright, for few would begrudge him a copyright if he used
it in a normal and reasonable and permissive way. What Ken is fighting for
is "history." By "history" I mean the story that will
be told and believed in the future. He's fighting for his reputation and
he's fighting for his perception of "the Story of the Course."
What he most powerfully DOES NOT WANT is open scholarly examination of the
editing, by comparing the original to the final abridgement, by people who
will ask "is it credible that Jesus would have asked for this or that
change?"
Whether he wants it
or not it will come in time. He'd have had to have destroyed all the
original material to prevent that. It has survived and it is somewhat
available and all he can really do is make it difficult to get, he can't
make it impossible to get.
Why can't he see
that what he's struggling for is futile and that his struggle is doomed,
inexorably, to ultimate defeat? For the same reason that most of us fail
to recognize our own fear-based self-deceptions. It is too scary.
Because burning
people at the stake or crucifying them is no longer fashionable, he's left
with copyright law as the only double edged sword to employ in this effort
at control. So far it has backfired MASSIVELY. Had Ken not sued EA, or
allowed/encouraged Penguin to, we'd still all believe the "virutally
no changes" story and Ken's copyright would be uncontested, if pushed
a little here and there at the fringes. By launching these suits against
people ready and willing to mount strong legal defences, the lid is really
blown off and his credibility is even openly questioned by the Judge.
The validity or even
enforceability of the copyright almost seems irrelevant, or at most a
trivial incidental, against this backdrop of larger issues.
Ken is in a very
tough pickle and the more he sues people the tougher it becomes. The
reason this is so is that regardless of the legal merits of his case,
lawsuits, even if he wins them all, won't resolve the real questions in
most people's minds because most people, including Judge Sweet, don't
consider law courts competent to rule on that most important of all
questions, the role of Jesus in the dictation and subsequent editing of
the Course.
Very serious doubts
have been raised in many peoples' minds about the authenticity of the
abridged version, doubts which are only intensified by Ken's efforts to
suppress the evidence, the original manuscripts. It appears there is
something he is trying to hide, and that is probably because there is
something he is trying to hide.
All the best,
Doug |
