Alice in the Wonderland of US Courts

It all started with a realization that copyright belongs to the author. And that copyright means the right to publish. And that for the copyright to have any meaning, all the tools of the copyright must be part and parcel of the copyright, and therefore belong to the author, too. And that all this taken together means that the author can publish his work himself and does not need to be dependent on another party — the third-party publisher — to exercise his right to free speech, and to profit from his work.

This is not Iran, nor China, nor North Korea, nor Arab states. This is the United States — the Land of the Free! You have something on your mind? Say it! Nothing comes in your way!

Well friend, you’ve got carried away in your patriotic pride. It quickly transpired than one, key tool of your copyright, the one that is dispensed by the US government, is given not to you, the copyright owner, but to a party that has no copyright to your work whatsoever — to the very third party publishers you thought you could outflank in your enthusiasm over American rights to speech and property.

That tool is the catalog of the Library of Congress in which all upcoming books that the government deems worthwhile are entered, and where they can be found by the nation’s libraries and bookstores by their subject. Presence in this catalog is the passport to the mainstream marketplace of ideas, without which your book will have real tough time getting into libraries and bookstores, since no one will know about it. Only books from the bigger publishers books are allowed in by the government — indiscriminately. Yours is, as indiscriminately, blocked.

Blocked politely, to be sure. As a mark of special consideration, a “preassigned control number” can be given to your book to show that the government is not utterly mean. A nice gesture, perhaps, but not terribly helpful. Librarians and bookstore purchasers are not likely to hit on your book when they put in keywords for subjects that interest them. “123456789” is sure a beautiful string of characters, but will not match keywords like “butterflies” or “terrorism” — in fact, it will match no word at all.

Well, all things considered, your copyright isn’t worth much — because it is not really yours. But shouldn’t it be? Isn’t America the country of laws? And of courts that make sure the laws are obeyed? Even by the government, when it tries to do what the Bill of Rights forbids it to do?

So I went to court, filing Overview Books v. US, to get rid of this particular instance of crony capitalism, claiming the illegality of government-sanctioned destruction of author’s intellectual property (which, for legal purposes, is the same as government’s taking of property that is, unless compensated, forbidden by the Fifth Amendment), and that the whole thing was patiently illegal because it constituted a government-sponsored abridgment of speech (for speech means anything only when addressed to an audience, and the author-ineligibility rule clearly abridges the book’s audience) — which is forbidden the government by the First Amendment.

To my surprise, the government essentially refused to fight. There was no meaningful argument in defense of this regulation whatsoever — just empty, unsubstantiated statements to the effect that book’s absence from the catalog did not impair its chances in the marketplace. There was simply nothing of substance — in fact, the government explicitly refused to offer any meaningful argument “in the interest of judicial economy,” as their lawyer put it. Since we presented huge piles of facts and law in support of our position, we knew as we were waiting for judge Lettow’s opinion that we won.

Except that we didn’t. He handed the victory to the government.

How come? What happened?

Magic. Literally. As I was reading judge Lettow’s decision, I could hardly believe my eyes. Facts in support of the government were there in abundance — the facts that were never alleged by the government itself, the facts which we saw for the first time, when it was too late for us to refute them. Law was alluded to, too — the law to which the government itself made no reference whatsoever, and to which it was too late now to respond. It was judicial magic — facts, law, the entire argument appearing out of nowhere.

Well, not exactly out of nowhere. Judge Lettow apparently decided that it was not right to give us a victory when there was no government’s argument. The government should have been given a fighting chance — and so the judge, as a true gentlemen in defense of an aggrieved and helpless party, invented it himself, right in his decision. And he apparently decided that it was fair not to hear our response to this argument before deciding on the case. Apparently, he rather liked the government’s argument that he came up with, and thought that it was invincible no matter how we replied to it (or, perhaps, he feared that it was so far-fetched that we would demolish it in no time). Either way, there was no reason whatsoever to allow us to reply to it. So, weighing his own argument against ours, and acting in the spirit of judicial impartiality, judge Lettow of the Court of Federal Claims decided that his one was better. He (and, of course, the government) won; we lost.

But the system is fair — there is an appeals process. You get not even one, but two opportunities to prove that you were wronged: at the court of appeals, and at the Supreme court. You are given the whole of fifteen minutes in the former, and it is under no obligation to explain its reasoning; a simple “approved” will do — as it did for us. Your chances of explaining yourself and of getting articulate opinion in the latter are far better — if you can get there. For “many are called, but few are chosen”. Ten thousand people want to be heard by the Supreme court each year; but it can only do so much work — about two hundred cases annually, or two percent of those submitted, to be more precise. No room is there for a little guy merely clamoring for Americans’ free speech and property rights; the Supreme court is for the bigger fish, and bigger issues.

But not all is lost. The case before Judge Lettow had two parts to its argument: the property and the free speech. The judge claimed that, his being strictly a property court, he had no jurisdiction to start his analysis with the free speech, or to examine it independently. The way his court worked, he explained, was to first examine the property aspect; and only if he discovered that the payment was due, could he take free speech aspect of the case into consideration — when determining the amount of compensation to be paid.

But since he determined that there was nothing wrong with the property aspect of not allowing the book into the government’s catalog, there was no computation of damages — and hence, there could be no First amendment evaluation. To be sure, there was free speech argument in his opinion, and in abundance — but only after the decision was already made. It was not part of the proper judicial deliberation but came after it, and was therefore of zero judicial value — just words in the opinion that are professionally called “dicta” and which carry no legal weight. So, from a legal standpoint, the jurisdiction issue really prevented judge Lettow from deciding on the First Amendment part of the case — this jurisdiction did not get triggered because he did not award us any damages. The First Amendment argument — the very core of the case — has not yet been adjudicated. So the case could be brought to another court, the court with unfettered First Amendment jurisdiction, to decide on the free speech aspect of the ineligibility rule.

And then another thing happened, and right in the nick of time — the government published its own study of this cataloging program titled “CIP Poised for Change” (“CIP being “cataloging-in-publication” — the program over which we went to court), whose results showed that the entire argument that judge Lettow so gentlemanly invented on behalf of the government, both the factual and the legal one, was simply wrong. Book’s presence in the government’s catalog turned out not to be merely an “accident” that did not affect book’s chances in the marketplace, as judge Lettow opined, but, per government’s document, of “critical” importance to book’s entry into marketplace of ideas and its success there. The “preassigned control number”, which judge Lettow declared to be as good as the catalog keywords, turned out to do absolutely nothing for the book but to be a way for the Library of Congress to get hundreds of thousands of dollars worth of books annually without paying for them (of which it keeps a half, and trades off the rest).

The government study conclusively showed that the ineligibility rule was totally arbitrary and irrational, contrary to judge Lettow’s musings that it had a solid rational justification, since the study intimated at the upcoming changes in the criteria for eligibility from three to five previously published books without reference to any study whatsoever that proved books from a three-book press that were previously deemed good enough suddenly lost quality, or that author-published books were a-priory worthless (it would be interesting to see such a study since Mark Twain’s Huck Finn, Walt Whitman’s Leaves of Grass, Beatrix Potter’s The Story of Peter Rabbit and the very Alice in the Wonderland referred to in the title of this piece are hardly worthless, though all were published by their authors, either through choice or necessity). Contrary to judge Lettow’s word of honor that the ineligibility rule has nothing to do with censorship, the government unabashedly told us in its own study that its purpose was to to “vet books” — precisely the censorship. And, contrary to judge Lettow’s factual finding that a solid majority of librarians strenuously objected to having author-published books on their shelves, the study found that only a solid minority of 32% harbored such hard feelings; the emotions of the remaining 68% ranged from indifference to enthusiastic embrace of such books.

So, armed with the jurisdictional argument and with appearance, since judge Lettow’s decision, of solid new facts, we re-filed in the New York ‘s Eastern district court, and judge Vitaliano instructed us and the government to submit our respective briefs. The government argued that the case was already adjudicated by judge Lettow. Not so, was our argument — judge Lettow’s court could not adjudicate on the First amendment because its First amendment jurisdiction didn’t get triggered, and in an event no First amendment analysis was made until he made a decision on the case; all First Amendment verbiage there is the written opinion came after the decision was made, and was legally worthless. Also, the newly-published results of the government’s study completely annihilated judge Lettow’s analysis, both factual and legal, both that which related to property, and that which discussed free speech. Clearly, the case should be allowed to go forward.

Surprise, surprise! Such was not judge Vitaliano’s conclusion. After two years of thinking about it, he decided that the case has indeed been already adjudicated.

How did he manage to do it? By magic. Magic again — of the same nature, but to a different effect. While judge Lettow caused the government’s argument to emerge magically out of nowhere right in the opinion, judge Vitaliano did the opposite magic, causing our main argument — that judge Lettow’s court’s First Amendment jurisdiction was, by his own admission, an auxiliary one, and which he could not invoke in the absence of monetary award, to disappear from his outline of our argument. He could not possibly allow that we said anything of a kind — even though page upon page in our brief was dedicated to arguing precisely that, starting with the very quote which judge Vitaliano insisted in his decision we never made, and proceeding to show that no First Amendment discussion took place in the written opinion until the decision was announced.

And so, again by magic, the victory went to the government. That the facts in judge Lettow’s decision were wrong too, according to the subsequent government study, was glossed over by quoting just one instance — of librarians not being unhappy with author-published books — and pronouncing its utter triviality. To the other and fatal factual errors in judge Lettow’s decision that came to light in the government’s study, the disappearance magic was applied, so they were found nowhere in judge Vitaliano’s decision.

With judicial magicians like judges Lettow and Vitaliano, who clearly came straight out of the land of the magic — from Alice’s Wonderland where the sentence comes first and the trial comes later, where the decision is known before the sides’ argument is considered, and this argument simply needs to be fitted into the preconceived decision — by magic, if necessary, is there any hope of getting a fair hearing, a hearing focused on the sides’ argument as it is, a hearing devoid of magic?

I certainly hope so, and will appeal There’s got to be conscientious judges — people who are willing to let sides’ actual argument to determine the outcome, people who do not resort to “magical” tricks. We’ve had the misfortune to get two magic-practicing judges in a row. But when a coin is flung twice and it is heads both times, there is a very fair chance that on a third try, it will be tails. Hopefully, this time around the hearing will go without any magic — just with straightforward, conscientious honesty. Our free speech rights now depend on it.