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Weaponizing Copyright Law

Massachusetts Lawyers Weekly ran this op-ed of mine on December 13, 2011, one week before the Mehanna trial concluded in US District Court in Boston.

Somewhat mysteriously, the piece has managed to cross MLW’s paywall event horizon…

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The Most Explosive Copyright Case Never To Be Seen

A rather nerdy aspect of the Tarek Mehanna trial suits it perfectly for the bookwormy city of Boston, arguably the nerdiest of American metropoli. The legal arguments animating the trial orbit an allegation of what we might call literary terrorism, and very near those arguments’ gravitational center sits a work of translation, the legally determined significance of which will contribute much to the settling of Mehanna’s fate. Under federal law, Mehanna’s charged with conspiring to injure persons or damage property beyond U.S. borders. But this case is also about the politics of a book, and what it means to make it accessible to English language readers. In other words, it’s about literary criticism.

The prosecution insists that Mehanna offered material support to Jihadi terrorists, in part through his translation of terrorist literature from the origianl Arabic to English, and through his subsequent online posting of those translations. His defense team argues that he’s a Nirvana fan, an intellectual engaged in the robust Internet-based discussion of the merits of Jihadism, an All-American in the best, First Amendment sense of the term.

The dramatic starkness of these competing interpretations makes for intense courtroom drama (the number of L.A. scribes toiling at film treatments presently is anyone’s guess), and will probably pave the way to a relatively rapid decision from Judge Leo Sorokin. So even though the stakes are high for Mehanna, with a life sentence being a possible outcome should his defense fail to successfully rebut the allegations against him, court watchers expect a conclusion before 2012 opens.

But the starkness also serves to shroud another dimension of this public controversy, an as yet un-acknowledged legal issue that could potentially, and radically, complicate the legal proceedings, as well as future cases turning, at least in part, on similar translation-related issues.

Strangely enough, this shadowed issue is a function of intellectual property; copyright laws, more precisely.

It is an uncontested fact of the trial that, sometime in 2006, Mehanna translated Muhammad bin Ahmad as-Salim’s book, 39 Ways to Serve and Participate in Jihad, from the original Arabic to English. Though a shadowy figure, various sources strongly suggest that as-Salim is a Saudi citizen. If this is true, then Saudi copyright law and, by virtue of the Berne Conventional, U.S. copyright law could apply to Mehanna’s translation of as-Salim’s book. The laws of both countries grant authors strong ownership rights in the translations of their works. And as no court-admitted evidence seems to indicate that Mehanna acquired permission from as-Salim to translate 39 Ways and post it online, there is a good chance that Mehanna violated as-Salim’s copyright under the laws of one or both countries.

Suing Mehanna for copyright infringement in the U.S. would serve no apparent end of a Jihadi theorist such as as-Salim. But if as-Salim were to bring suit against Mehanna under Saudi copyright law, Mehanna could face a penalty spectrum ranging from a warning from the Saudi Ministry of Culture and Information at the weak end, to a prison sentence of up to six months at the strong end. That stronger sentence would obviously necessitate Mehanna’s appearance before officials in Saudi Arabia.

It’s likely, were he to allege such an infringement, that the personal costs to as-Salim could include a well-placed Hellfire missile, or whatever other nasty bit of payload a hovering Reaper might have at its disposal. But, the administrative costs that would be forced upon the Saudi and American courts, the diplomatic costs their respective emissaries would likely incur, the media kerfuffle and sensational exposure (think of it as an extreme book advertising campaign), might make it worthwhile for a true radical. And if this scenario seems a worthy plot element from an unpublished Thomas Pynchon novel, recall that before 9/11 the idea of a hijacked airliner being turned to terrorists’ ends was widely judged a foppish concept, suitable only for the pages of a Tom Clancy techno-thriller.

Ultimately, even if as-Salim does not turn out to be some kind of Zola of Arabia, an activist intellectual willing to stick his neck out to protect someone he considers to be an unfairly persecuted comrade-in-arms, the contours of the Mehanna case reveal a strange potential of the law. Like a plane, a cell-phone or a sacrificial body, copyright might also be weaponized in this Age of Terror.

Michael G Bennett is an Associate Professor of Law at Northeastern University.

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