Don’t Mess with Derrida

Monday, May 7, 2018

From Evelin Heidel’s chapter on Argentine shadow libraries.

Publishers continued to bring cases against students and faculty under Article 72 and they continued to lose them. In 2007, philosophy professor Horacio Potel was sued by the Argentinean Chamber of Books (CAL) for making texts by Heidegger, Derrida, and Nietzche available on websites he had built to support his teaching—a practice he had begun in 1999. The suit was initiated at the behest of Les Éditions de Minuit, a publisher of Derrida’s work, and was promoted by the French Embassy, which invoked “the golden rule” of intellectual property (Hax 2009). (The Nietzsche component was dropped when someone pointed out that Nietzsche’s work had entered the public domain decades earlier).

The case moved forward slowly, then quickly. In Potel’s account: “I didn’t hear a word about any of this until 2009, when the police banged on my door in the middle of the night to check my address. It was a terrible situation. All the police said was: “You already know what this is about.” It was not until the next day that we were able to find out what the charges entailed. I, a philosophy professor, was charged with disseminating philosophical texts for free.” The circumstances of the case produced a significant public outcry. Under pressure, CAL decided not to pursue the case. Because this was a criminal matter, however, the withdrawal of the plaintiff did not end it. The public prosecutor decided to continue the case. Potel’s motion to dismiss was rejected, and Potel was required to post a bond of 40,000 pesos. While waiting for trial, however, the State Prosecutor reversed course and dropped the charges…

Despite the protection that judges afforded students and faculty, educational limitations and exceptions did not coalesce into a clear or consistently reproduced doctrine. None of the acquittals addressed the issue. On several occasions, judges found technicalities that allowed them to avoid sentencing students under criminal law, such as the argument that “to photocopy a photocopy is not a crime.” Although such decisions favored the students and established increasingly elaborate precedents against the use of Article 72 in such contexts, they skirted the underlying question of the role of copyright law and of university policies in enabling affordable access to educational materials. Instead, what began as more or less informal practices and forms of complicity between students and universities became more formalized and widespread. Student responsibility for organizing access to materials for their peers became a norm and ultimately a duty assumed by student associations. In some cases, the universities provide the space or other forms of subsidies to sustain this practice. The result is a de facto rather than de jure set of educational exceptions, more or less recognized and tolerated by the major institutional players.

The American Assembly
475 Riverside Drive, Suite 456 New York, NY 10115
212-870-3500 -