Writing for Eternity

Once, one wrote for an audience, and with mainly that audience in mind. The audience was typically disciplinary, geographical, and temporal. The outlet in which the writing appeared defined the audience. It appeared in a periodical distributed within-or, at most, throughout-a certain disciplinary community, within some, perhaps broad, geographic boundaries, and always at a specific time. In the case of archival, scientific publication, one wrote for the record, i.e., for eternity; still, even in that case, one had a disciplinary and perhaps a geographical audience1 in mind.The scanning and digitization that are proceeding apace and the concomitant dissemination of the results of that digitization on the Worldwide Web have changed much of this. Today's authors know that anything they choose to publish may well be available to everyone, everywhere, for all time, and knowing that may (or may not2) choose to adjust their writing accordingly. In fact, most authors consider such ready availability to readers, scholars, teachers, and practitioners a wonderful boon. But it is so, if it is so, to the extent it is so, only because when they were writing they might have been mindful that the borders of time, space, discipline, and increasingly language3 no longer limit the potential audience for their work.We wish to discuss here briefly the ethical problem that inheres in making any but the most clearly archival sources available through scanning, digitization, and worldwide dissemination, those works written under the former assumptions of the particularities of "audience" as understood in "the olden times." That ethical problem is that the reputation of the author may be impacted negatively in a way that could not be foreseen and is, therefore, undeserved. The worldwide, instant availability of texts possible today recalls the science fiction of only a few years back. Were it not so, it would be hard, indeed, for those of us who grew up in the world of bricks and mortar housing volumes of print to believe what is today possible with none of this structure. Indeed, just standing back, it is still hard to believe, even though it is true. This is surely one of those developments about which it can be verily said, "Who would have thunk it?"Since it is the author's repute that may undeservedly suffer, the decision must rest with the author and the author alone. And, under existing law, it generally does. In New York Times v. Tasini (530 U.S. 483), the United States Supreme Court found that an electronic version is qualitatively different from a print version, because bound with different contents,4 and therefore a different edition that may not be prepared without the permission of the copyright owner-always, in the first instance, the author, save those works made in the course of employment. The author, and if he is deceased, those to whom his interests and estate have lawfully passed, should and must be, and under current law generally is, the arbiter of whether permission to allow the digitization and worldwide dissemination of his work should be granted or withheld. …