When last we visited with Sherlock Holmes, a federal judge had just saved him from the clutches of perhaps his most menacing foe ever -- the copyright law.
Now an appeals judge has saved the great detective from an even greater threat -- extortion by a copyright troll.
To recap, the story involves Leslie S. Klinger, a Westwood tax and estate lawyer who is one of the nation's foremost experts on Sherlock Holmes and co-editor of two anthologies of new and original stories featuring characters -- Holmes, Watson and others -- appearing in the "canon," the original 56 stories and four novels written by Arthur Conan Doyle.
The Doyle estate extracted a $5,000 licensing fee from Random House, the publisher of the first anthology, on the claim that it owns the rights to Holmes and all related characters until the copyright expires on the last few stories in which they appeared. That won't happen until 2022 or 2023.
Klinger's position -- and that of most copyright experts -- is that the main characters are already in the public domain, as they first appeared in print in 1887 and their creator, Arthur Conan Doyle, died more than 83 years ago.
When the estate demanded a payment from the publisher of the second anthology and threatened to block sales of the book at Amazon.com and Barnes & Noble if it didn't collect, Klinger sued the estate. He won in federal court in Chicago in December. That ruling was upheld in June by a three-judge panel led by U.S. Appellate Judge Richard Posner.
This month, Posner took up Klinger's demand for $30,680 in legal fees from the Doyle estate. (A separate request for an additional $39,000 is pending.)
Posner awarded Klinger his money. But he also fired a Moriarty-sized charge into the Doyle estate's claims and methods. He called the estate's copyright position "frivolous" and described its business strategy as follows: "Charge a modest license fee for which there is no legal basis, in the hope that the 'rational' writer or publisher asked for the fee will pay it rather than incur a greater cost, in legal expenses."
Posner called this "a disreputable business practice -- a form of extortion."
Aficionados of the genre will recognize it as akin to the work of the alleged copyright trolls at Prenda Law, who used it to extract money from Internet users it accused of downloading pornographic movies. We covered the Prenda follies here.
Posner went even further, taking aim at the estate's threat to block sales of Klinger's volume at Amazon and Barnes & Noble.
The estate, he wrote, is "playing with fire in asking Amazon and other booksellers to cooperate with it in enforcing its nonexistent copyright claims against Klinger." That's a boycott of a competitor, he observed, and boycotts of competitors are illegal under the antitrust laws.
"It's time the estate, in its own self-interest, changed its business model," Posner warned. It wouldn't take a Sherlock Holmes to detect the sinister import of his words. Will the Doyle estate be as smart as Sherlock Holmes would be, and follow Posner's advice? We'll see.
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