Copyright Decision: What Does the Verdict Mean?

by Robert Perry

On October 24, 2003, the copyright on A Course in Miracles® was dismissed. On that day, a verdict was issued in the copyright case between Endeavor Academy and FACIM (the Foundation for A Course in Miracles) and FIP (the Foundation for Inner Peace). Judge Robert W. Sweet of the Southern District Court of New York found that the Course was distributed prior to publication and, as a result, its copyright is invalid.

What does this mean? Does it mean that anyone can quote from, or even publish, A Course in Miracles? For now, it means nothing; it's business as usual for everyone, including the Circle. Most observers believe that FACIM will appeal, and if they do, the judge will most likely stay the order until the appeal is resolved. The first step is for the draft of the Order of Entry of Judgment to be completed by Endeavor and then signed by the judge (it is not clear how long this might take, but I have the impression it will be done shortly). From the time that order is signed, FACIM has thirty days in which to file a Notice of Intent to Appeal, and six months in which to actually prepare and file the appeal.

The point on which everything turns is whether or not FACIM decides to appeal. If they decide not to appeal, the copyright will be ended as soon as that 30-day period expires—which would probably be some time near the first of next year. If they decide to appeal and the appeal is accepted, the issue could drag on for many more years.

Interestingly, Endeavor is stating in the draft of the Order of Entry of Judgment that the copyright should also be dismissed on the Hugh Lynn Cayce version and the Urtext—two earlier versions of A Course in Miracles that have been released over the Internet in the last four years. The reason is that FACIM has consistently argued that these earlier versions were "encompassed" in the copyright on the Course itself.

Given that, for now, the copyright is still in effect, perhaps the most relevant thing to do is to examine the judge's verdict. Why did he decide what he did? Endeavor had originally mounted a number of defenses, the key one perhaps being the claim that the Course could not be copyrighted since it had no human author. In July of 2000, however, Judge Sweet rejected all of Endeavor's defenses (including the authorship defense) except one: the issue of prepublication distribution. Consequently, the whole point of the trial, which took place in May and June of this year, was to decide if there was sufficient distribution of the Course prior to it being copyrighted to place the Course in the public domain.

Endeavor clearly established that a number of copies had been distributed without a copyright notice affixed to them. This was pivotal, for it shifted the burden of proof to FACIM/FIP. In order for the copyright to stand, FACIM/FIP now had to prove that this distribution was "limited" rather than "general." To be limited, it had to be shown that "the publication was (1) to a definitely select group, (2) for a limited purpose, and (3) without the right of diffusion, reproduction distribution or sale" (unless otherwise noted, all quotes are from the judge's opinion, which can be read at CopyrightVerdict). FACIM/FIP had to prove all three points, or the publication would be deemed "general," and the copyright would be invalidated. According to the judge, however, they were not able to prove even one of these points.

On the first point, the judge ruled that the distribution was not to a select group. To begin with, Helen and Bill were in the habit of giving the Course to individuals who they deemed "worthy or ready for the Course"—a "completely subjective" criterion. Further, the judge ruled that extensive Xeroxing of the uncopyrighted manuscript did occur in the Bay Area in 1975, thus shattering the possibility that the distribution was to any sort of select group.

On the second point, FACIM/FIP needed to prove that the copies were distributed for a strictly limited purpose, "such as to seek commentary or criticism." The judge, however, saw two pieces of evidence that there was no such limitation: first, that so many unknown individuals received Xeroxed manuscripts, and second, that so many known individuals who received copies were strangers or virtual strangers to Helen Schucman. Citing case law, Judge Sweet stated that "an author's lack of personal knowledge or friendship with persons that receive the work is indicative that a distribution was not limited as to the group or the purpose."

On the third point, the judge ruled that the way in which copies of the Course were distributed did not "preclude recipients from reproducing, distributing or selling any copies." He decided that the facts were consistent with the following scenario: "(i) Schucman and Thetford did not object to the Course's distribution in California; (ii) that 100's of people acquired copies in California; and (iii) people were running off copies as fast as possible." He concluded that by the summer of 1975, Helen Schucman, Bill Thetford, Ken Wapnick, and Judith Skutch "intended to make the Work as available as possible without limitation."

In the process of deciding all these issues, Judge Sweet has, perhaps inadvertently, given us all a badly needed official history of the publication of A Course in Miracles. Until recently, there has always been essentially one version of the events that led up to the Course's publication, the version that has inspired so many thousands of Course students. However, at the May trial, the surviving principal players in that story gave a significantly different account, raising the question, "What really did happen?"

The judge categorically sided with the original version of the story. According to him, this is what happened: Helen "Schucman was embarrassed by her scribing and considered it her 'guilty secret.'" Fearing for their professional reputations at Columbia University, she and Bill Thetford originally "chose to keep [the Course] a secret." That is why they didn't put a copyright notice on it, even though they were accustomed to copyrighting their professional articles. Then, "as the work began to take shape, Schucman and Thetford revealed the work to individuals who they believed would be interested in the intersection of the psychological and the spiritual." These included Hugh Lynn Cayce, Father Benedict Groeschel, Calvin Hatcher, Jon Mundy, Ken Wapnick, Douglas Dean, and Judy Skutch Whitson.

Shortly after receiving the manuscript, Judy then took the Course to California, in two key trips that took place in June and July of 1975. During these trips she gave some or all of the Course to various people, including Jerry Jampolsky, Jim Bolen, Edgar Mitchell, Zelda Suplee (who gave a copy to Reed Erickson, who, months later, would fund the first printing of the Course), Paul Steinberg, and Saul Steinberg. This was also when a large number of Xeroxed copies of the manuscript, perhaps hundreds, found their way into the hands of "a number of unknown people" in the Bay Area. The judge states:

From all the evidence, it is a fair inference that, as Skutch Whitson stated, on her second trip to California she permitted xeroxing "and it seemed very right that people would pass it along, copy it over and copy it over, until finally people's copies were getting so light, that they couldn't see them anymore, and a few of us got together and recognized the need to put it in some kind of a form that was easier to read. And out of that came very small little paperbacks that the print was so small you needed a magnifying glass" [the quote is from a transcript of a past talk given by Judy].

This spread of uncopyrighted manuscripts in the Bay Area was crucial, for it was the driving force that set in motion the rest of the story. First, it caused Helen and Bill to reverse their "secrecy policy" regarding the Course and decide instead to copyright and distribute it:

However, after Skutch Whitson's California trips, the appeal of the Course to a wider audience became apparent, and…a decision was made…to copyright the work so that it might be distributed more broadly….The decision to copyright and thereby to control and profit by the distribution of the Course was made after the distribution of the xerox copies described above.

Second, the sheer cost of the Xeroxed manuscripts—$75 per copy—led the early Course family to decide to print what has been called the Criswell edition, in which they simply had the typewritten manuscript (the one everyone had been Xeroxing) photographically reduced and printed through a process called "photo offset":

However, it is fair to infer from the description of the July meeting that a number of xeroxes were made and that the cost of the xeroxing was a motivating factor in developing the Criswell editions.

The Criswell edition is what then led to the publishing of the First Edition of the Course in June of 1976, both because its three hundred copies sold out quickly and because it brought offers from several publishers to publish the Course.

This account fits with the story that has always been told, and, according to the judge, it fits the evidence. However, it stands in marked contrast to the story presented at the trial, principally by Judith Skutch Whitson. According to her testimony, Helen and Bill "always knew that some day we would probably have to publish it or have it published" (from the trial transcript, which can be read at http://www.themiracletimes.com/August/Final%20Trial%20Transcript.htm). In this version, Judy did take the manuscript with her to California, but she cautiously shared it with just two people, Jim Bolen and Jerry Jampolsky, and not for their personal benefit, but strictly to seek their professional feedback on the quality of the manuscript. Rather than there being hundreds of Xeroxed copies, there was a grand total of five, all kept very close to home and under strict instruction that they not be reproduced. As a result, the decision to print the Criswell edition was not, in this version of the story, sparked by the cost and popularity of the Xeroxed manuscripts. Instead, Helen, Bill, and company already planned to publish the Course, and Dr. Criswell simply made a suggestion to Judy for how that might occur in an initial form, leading them to conclude that this "might be a temporary solution until we found out what was our next step" (from the trial transcript).

Of course, what is really strange about this new version is that it was told by the same people who gave us the original version. In seeking to explain this, Judy claimed at the trial that the story she had previously told for more than twenty-five years was "embellished," essentially in order to generate enthusiasm for the Course. In point of fact, she said, there was no spontaneous Xeroxing of the manuscript. The Course was not available for whoever wanted it. It truly was, in other words, a limited distribution. Other witnesses for FACIM/FIP lined up behind this same story. Yet the judge clearly did not believe them. He pointed out that the evidence for a limited distribution lay solely in the oral testimony of "interested witnesses," witnesses who receive enormous financial benefit from the Course's copyright. The judge returned repeatedly to the theme of a mystical book being transformed into a lucrative property:

Although it was Schucman's directive that only a nonprofit foundation was to publish the Course, FIP assigned it to a for-profit company, Penguin, for $2.5 million dollars. Skutch Whitson and her family receive salaries, perks and benefits from FIP.
The mystical experience [the scribing of the Course] reported by Wapnick and Skutch Whitson was converted by Skutch Whitson into a property right.

Ironically, it is the judge who has converted the story of the Course's publication back into a "mystical experience." For the story told by FACIM/FIP at trial is a rather flat, ordinary tale: Helen, Bill, Ken, and Judy had the intent to publish the Course and, step by step, they found a way to do it. The original version is far more inspirational and conveys the feeling that there was something greater at work than the human players involved. In this version, the group had no plans to publish the Course; it was a carefully guarded secret. Yet they did consider it a gift from above, and so they passed it on to anyone who seemed meant to have it. And as they did, it escaped their grasp and spread like wildfire, compelling them to finally realize that their "guilty secret" was actually meant for the world. How ironic that it took a federal judge to restore to us this timeless tale.

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