Profiting From Book Theft
From prison to wealth?
By Michael Stillman
Crime doesn't pay. Or does it? The book world found itself tossed into the seas of constitutional law when a Kentucky judge ruled that four convicted book thieves could profit from their misdeeds, at least in theory. While on the surface this sounds outrageous, the issues are far deeper and more complicated. This one strikes at the heart of free speech. If there is any one right people in the book world should most want to protect (besides the right not to have their books stolen), it is the right of free speech. This is the issue that played out in a Lexington courtroom a few weeks ago.
In December, four young men, former college students at that, pleaded guilty to stealing some rare books from the library of Transylvania University in Lexington. They received sentences that will require them to serve at least seven years in prison (parts of those sentences are currently under appeal). At the time of sentencing, District Court Judge Jennifer Coffman asked the parties to submit opinions on whether a statute designed to prevent criminals from profiting by selling the stories of their crime should be imposed on the defendants. While there was no indication any of the defendants planned such a book, they won't have much else to do during the next seven years. Might as well write a book.
This issue came to the forefront back in the 1970s when the New York State legislature passed the "Son of Sam" law. David Berkowitz, the son of Sam Berkowitz, had committed a few sensational murders of young lovers around New York's Central Park. The crime was such a sensation that lawmakers feared Berkowitz would make a fortune selling a book about his horrific crimes. I'm not sure what he would have spent it on; cigarettes maybe, but this guy didn't deserve even that. However, New York's "Son of Sam" law was struck down in a unanimous U.S. Supreme Court decision in 1991. The Court found this law, at least in its particular form, a restraint on the right of free speech. There are many other such laws on the books of other jurisdictions, and to what extent and in what instances they are applicable, is still a major question. Free speech is a complex and controversial subject, and issues which arise on its borderlines, like pornography, flag burning, obscenities on tee shirts, and whistle blowing, are never easy to decide. Did Cindy Sheehan have a right to attend the President's State of the Union address wearing an anti-war message on her shirt? Did Karl Rove or Scooter Libby have the right to release a CIA agent's name? Do these book thieves have the right to sell their story? None of these are easy to answer.
Ultimately, Judge Coffman ruled that the court could not seize the money earned by these thieves should they sell their stories. This does not mean that they cannot be sued for the damages they caused. Librarian B.J. Gooch, who was tied up and zapped with a stun gun during the robbery, is suing and will be entitled to funds from any books, or any other sources these men may have, should she be successful. However, the state may not seize and hold funds in advance on behalf of victims or anyone else.
Profiting From Book Theft
Her decision was apparently based on the 1991 Supreme Court decision in Simon & Schuster v. New York Crime Victims' Board which struck down the "Son of Sam" law. The court ruled that, since no one was physically harmed, the current law could not be applied. While the librarian was stunned, the court did not feel this rose to the requisite level of physical harm. As a result, these men may tell their stories and be paid for it. Maybe Ms. Gooch or others will win some or all of their earnings in court, maybe she won't. However, if her damages are limited, and this story becomes a bestseller, there is at least a possibility they will profit from their crime.
I don't know about you, but I will have to admit to having mixed emotions on this one. Most people would probably agree that people should not be able to profit from their crimes. Charles Manson could probably write a bestseller. So could Sirhan Sirhan, BTK, and, undoubtedly, Osama. Unfortunately, the devil is in the details. How about inspirational writers and speakers, whose words can help troubled people turn their lives around? It is the very fact that they were once down, perhaps living a life of crime, that gives them the authority to speak on the topic and help others. Should they be silenced? How about former thieves or even violent criminals who use their experience to teach others how to protect themselves? Should civil rights workers such as Martin Luther King have been prevented from writing about their "crimes?" What about individuals such as John Dean and other Watergate conspirators whose memoirs provided important historical documentation? Could such a law have prevented even Richard Nixon himself from writing or speaking?
One of the arguments that the prosecution in the Transylvania case made was that these laws don't prevent criminals from talking, only from making a profit from their speech. However, people have to make a living. You can't write or speak if you cannot earn a living. Dedicating the time necessary to write a book or give speeches may be effectively impossible if you cannot be paid for these labors. The reality is that most of us can probably sense when it is acceptable for someone to earn income that is at least partially related to past crime, and when it is thoroughly offensive profiteering on criminal behavior. The problem is trying to put that down in words; to write a law that allows for legitimate use of that experience for profit while preventing its illegitimate use. It's like trying to write a definition of pornography. You may, in Justice Potter Stewart's words, "know it when you see it," but just try to define the boundary between pornography and art in words. It is virtually impossible. The same applies to inappropriate profiting from crime.
This brings us to one other book-related case looming on the horizon. What about the map dealer who is alleged to have cut maps out of books in rare book libraries and sold them for enormous sums of money? Should he, or someone else like him, be convicted, that would make an interesting story, perhaps even a movie. Aristocratic antiquarian map seller steals maps from great university and public libraries and sells them to extremely wealthy, upper class collectors and unsuspecting institutions. A story about the duping of some of our wealthiest and most sophisticated individuals might make a most appealing book and film for the average workaday person. He might achieve the financial rewards he set out for when conducting this nefarious behavior by selling the rights to his story. And that, in turn, might encourage others to follow his example. There are no easy answers.