Weblog:   Too Quick to Copyright
Subject:   Unrealistic and Very Lawyerly
Date:   2003-11-23 19:06:48
From:   anonymous2
Prof. Jason Mazzone should leave his Brooklyn campus and spend time in the real world before he launches his ill-conceived crusade to make the mere inclusion of a copyright notice in some reprinted old text a federal crime punished as brutally as acts are under the Langham Act. The issue is not as simple at he assumes and the downside to what he advocates is scary.

Yes, the CONTENT of a public domain text is owned by all. Everyone knows that and no one in publishing with any sense is deterred by a copyright notice at the front of a new edition of an old work. But it is possible to copyright other aspects of a work. I've published quite a bit of material that's in the public domain and in only one case did I not add substantially to the material by adding footnotes, collecting supplemental material, including glossaries and indices, clarifying difficulties etc. All those are things represent my own creative work and all are things that I can quite legally copyright. That's why the notice is there. (Incidentally, I make a point of using an actual pre-1923 text for all that I publish.)

It's also easy to suspect that as a university professor, he'd like to copy without restriction the actual printed text of recently published books, such as that handy "pocket Constitution" whose copyright notice his criticizes. Admittedly, it is a bit of a stretch to claim that simply formatting a text and fitting into a limited space is the sort of creative activity copyright laws were designed to protect. But on the other hand, it isn't asking too much to expect Prof. Mazzone, if he wants a compact text for his students, to create his own and not steal someone else's labor and investment.

And in some cases that investment can be substantial. I spent the past two weeks full-time creating a carefully proofed electronic text of a very rare edition (one of eight copies) of one of William Morris' works and I'll spend at least another week completing the text of the other rare Morris work I'll be publishing in that same edition. Isn't it in the public interest that I receive some protection from a skin-flint English professor who resents the modest price I'll charge for the book (probably $12.57 on Amazon) and uses a Xerox machine to copy my book, which, because my labor and editorial skills aren't rewarded, could be sold to students for perhaps $6. Fortunately, the law on that point (taking formatting and layout instead of text) is unclear enough to deter, if not that professor, at least his university.

It's also easy to see in all this yet another example of a trait that's virtually universal among lawyers, the attitude that everything that CAN be turned into work for lawyers SHOULD become work for lawyers.

Presently, it is quite legal to include a general copyright statement with a work under the assumption that "All Rights Reserved" means all the rights permitted by law. Contrary to the professor's remarks, no fraud is involved. But if Prof. Mazzone has his way, many copyright pages would have little room for anything other than a quite lengthy and abtuse-to-all-but-lawyers copyright notice. That means work for lawyers, lots and lots of work for them. In the case of IP lawyers, that's work billed at $175 to $300 an hour.

So, the end result of Prof. Mazzone's quite significant extension of copyright law would be to raise substantially the cost of publishing old works. A lot of them simply would not be published.

Even worst is a matter he seems to have given no thought to. Criminalizing a so-called 'abuse' of a copyright notice would give the government quite a bit of power to censor under the cloak of enforcing laws. That's particularly important when you realize that our current copyright laws are civil affairs. Except in rare cases, it isn't the government who's taking an author or publisher to court, but a private entity. His ill-thought-out scheme would give the federal government the power to become the plaintiff and to use these greatly extended copyright laws to censor material it does not like on the flimsiest of excuses. And if the professor knows anything about copyright law, he knows its muddled enough to allow the government quite a bit of latitude for prosecution.

I want to make clear that I believe quite strongly in limits on copyright. I spent a year and a half fighting, in and out of court, the J.R.R. Tolkien estate because I believed (quite rightly it proved) that my chronology of The Lord of the Rings (now out as Untanlging Tolkien) was fair use.

But I'm disgusted to see a law professor, under the guise of teaching teenagers to respect copyright laws, advancing a scheme that would enrich lawyers, raise the cost of publishing old books, make our already muddled copyright laws still more muddled, and allow the governments use copyright laws to censor via brutal prosecution for false advertising.

One final note. Given how often the law profession, acting on behalf of deep-pocketed interest groups, tries to use copyright laws to restrict free speech, there are a lot more useful activities he could be engaged in than this mad extension in government power. For a start, he lives in the Second Circuit, home of the infamous 1998 Castle Rock family of decisions that were almost universally condemned in law journals and that the Tolkien estate tried to use against me. The legal counsel for the University of Washington Press told me that, because of them, his press was avoiding books on popular, contemporary fiction. That's bad, very bad. If he wants to do some good, he should take on those dreadful decisions and get them decisively overturned.

--Mike Perry, Seattle
P.S. You can see the public domain and other books I've published at: http://www.InklngBooks.com/

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  • Unrealistic and Very Lawyerly
    2003-11-29 08:00:49  anonymous2 [View]

    Re: Mike Perry's commentary:

    Mr. Perry's argument seems to support the proposal for making false claims to copyright actionable.

    Copyright does not reward mere exertion, only original creativity. It doesn't matter how much time and effort you spend reproducing and proof-reading an electronic copy (or any other kind of copy) of somebody else's original work--copyright doesn't reward you, it only rewards the original author of the work. You might think it is in the public interest for you to spend the time and energy re-publishing a public domain work, but the Copyright Act squarely rejects that approach, and so you shouldn't use copyright to leverage ownership and claim rewards.

    You also misrepresent the original proposal. The proposal for making false copyright claims actionable did not suggest making them criminal. Like under the Lanham Act and under state false advertising laws, private individuals would have a civil cause of action against publishers who claim copyright falsely. Rather than the government prosuecting violators, the general public would be empowered to protect its own domain.
  • Tim O'Reilly photo Unrealistic and Very Lawyerly
    2003-11-23 20:32:25  Tim O'Reilly | O'Reilly AuthorO'Reilly Blogger [View]

    I have to confess that I didn't read Mazzone's paper, just the summary. The article sounded interesting enough to point to if only to engender some debate, because I agree very strongly that copyright interests have pushed the needle too far in the direction of limiting the rights of the public.

    Sounds like you have some very relevant experience, though, and that the issue is more complex than it sounds on the surface. And I certainly agree that we don't need more government intervention.

    That being said, the very lack of clarity about copyright that you mention means that the assertion of rights in association with a public domain or out of copyright work ought to be more specific than saying "All Rights Reserved" and leaving it unclear just what rights are owned.

    For example, when we published modified editions of the freely redistributable X Window System documentation in 1988, we made very clear in the copyright notice that it was our modifications that were copyrighted, and not the entire work.

    I remember again Lao Tzu's immortal words: "Losing the way of life, men rely on goodness. Losing goodness, they rely on laws." We get calls for more laws because of the many abuses that have been carried out in the name of extending intellectual property. There are many cases where seemingly incidental improvements to a public domain text have been leveraged into a near-monopoly position because people didn't realize early enough what they were getting into. (I'm thinking particularly of West's legal citation system, which has done copyright jujitsu to create effective ownership of a body of otherwise public domain content. No one questions the value of West's citation system, but the unintended consequence was to grant an unintended monopoly on referencing otherwise public domain texts.)

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