Civil War Sesquicentennial, Part Two: Gettysburg

By June 1863, the Confederates had won some major victories at Chancellorsville and Fredericksburg, although they paid a heavy price with the loss of the legendary Stonewall Jackson. Tragically, he was killed by some jumpy Confederate pickets who had mistaken him and his troops for Northerners.

Lee wanted to seize the momentum by moving into Northern territory through Maryland and Pennsylvania. His hope was to catch the Union army off guard and also to move the war away from the impoverished fields of Virginia and other parts of the South and take advantage of the fertile fields and plentiful livestock in Maryland and Pennsylvania.

Stonewall Jackson’s old 2nd Corps., now under the command of General Richard Ewell, who had lost a leg at Second Bull Run, marched into Pennsylvania headed toward Carlisle, while another army under the command of Major General Jubal Early, marched toward York and Harrisburg, which was the railroad center for the North. The Confederate Army continued to push North into Pennsylvania, using livestock, food, wagons, and clothing taken from Pennsylvania civilians (with a promise to pay them Confederate money once the war was won).

There was no thought of engaging in battle in Gettysburg, but rather one of the greatest battles ever fought on American soil began as a routine mission to obtain shoes.

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One Public Domain to Rule Them All

The Supreme Court heard oral argument this morning in Golan v. Holder, which considers the constitutionality of Section 104A of the Copyright Act, added in 1994 by the obfuscatorily named Uruguay Round Agreements Act. The constitutional issue is whether Congress can, consistent with the Copyright Clause and the First Amendment, remove works from the public domain by “restoring” copyrights to works that had either expired or failed to vest due to a failure to comply with technical requirements.

If that sounds a bit abstruse, here’s the issue put more concretely: can Congress restore the United States copyright to J.R.R. Tolkien’s Lord of the Rings trilogy? Or once a work is in the public domain, for whatever reason, is it there irretrievably? The first volume of The Lord of the Rings was published in the United States in 1954 with a paltry 1,500 copies; even though the Hobbit had done well, Tolkien’s publishers did not anticipate what a blockbuster success The Lord of the Rings would be. As a result, the copies soon sold out, and instead of running another U.S. printing, Houghton Mifflin, Tolkien’s U.S. publisher, imported more copies from the UK to fill demand. But apparently Houghton Mifflin screwed up, because they accidentally imported too many: U.S. copyright law at the time contained a protectionist “manufacturing requirement” for books, requiring books sold in the United States to be printed in the United States, with only limited exceptions. A paperback publisher discovered the error in 1965 and printed 150,000 copies of the trilogy without paying any royalties to Tolkien or his publishers.

The Lord of the Rings is just one example of foreign copyright owners getting tripped up by U.S. copyright formalities.

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Marquette Students Win IP Writing Competition

Congratulations to Mitchell Stock and Francisco Quiroz, winners of the State Bar’s 2011 IP Writing Competition.  Stock won first place for his paper entitled “Hypothetical, Actual, or Footstar: How the Courts Should Handle Patent and Copyright Licenses in Chapter 11 Bankruptcy.”  Quiroz took second for “The Decline of Fair Use: How the DMCA Marginalized Fair Use and What To Do About It.”  This adds to a recent tradition of strong showings by Marquette law students in the competition.

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