Achilles’ bane full wrath resound, O Goddesse, that imposd

July 12, 2011 8:50 PM

A book recommendation by Mr. O'Brian (previously); the Chapman translation of the Iliad. The same book that guided William Shakespear in writing Troilus and Cressida.

"I read him in a translation, a book a young lady gave me for a keepsake in Gibraltar by a cove named Chapman, a very splendid cove." "it is magnificent - a great booming, sometimes, like a heavy sea, the Iliad being in fourteeners…" "… the Iliad, of God loves his soul, never was such a book as the Iliad!" - The Far Side of the World, Chapter 4. Bonus: Keates "On First Looking into Chapman's Homer"

posted by Binliner (22 comments total)

I've never read the Chapman translation; I always preferred the Fitzgerald and Christopher Logue versions (the latter a very loose though incredibly worthy "translation") and I was very pleased to later find out from Guy Davenport just how impeccable my taste is. Chapman is free, however, and gets name-checked by Keats, I'll have to give it a look.
posted by villanelles at dawn at 9:21 PM on July 12, 2011 [2 favorites]

Okay, this kind of thing really pisses me off. Chapman's Homer translations were completed in 1616. Why is the first link an excerpt from and linked to an edition that is Copyrighted in 1984 by Princeton University Press? That is Copyfraud.
posted by charlie don't surf at 10:15 PM on July 12, 2011 [1 favorite]

I haven't hit up Chapman yet, either. I've read some or all of Pope, Lang, Butler, Fagles, and Fitzgerald, but haven't gotten around to this one. Never really liked Logue or Fagles. Now I have one to look forward to!

Is there a modern-spelling version? Writing from this period distracts me with its word variance. I'd like to get it in print, though, really.
posted by BlackLeotardFront at 10:20 PM on July 12, 2011

That is Copyfraud.

No it isn't. the edition is copyrighted because of the introduction and any other front matter. They are not claiming copyright over the Chapman translation. Read the fine print next time you see a copyright statement and you might learn something.
posted by anigbrowl at 10:25 PM on July 12, 2011 [1 favorite]

This post confuses me. Is it about Homer?
posted by Ice Cream Socialist at 10:38 PM on July 12, 2011

Wrong, anigbrowl. Read the copyright notice more carefully. The only material that is copyrightable is the preface and the introduction. The preface is copyrighted 1998 to Garry Wills, separately from the rest of the text, which is fraudulently copyrighted by Princeton University Press in 1984. The copyright 1956 Bollingen Foundation edition is presumably the source of the introduction. They used the copyright on that intro to extend and embrace copyright on the public domain text that followed. This is a common practice in publishing, and it is copyfraud. Read my article on the topic of Copyfraud and you might learn something.

Note, this complaint wasn't just an excuse to self-link. I'd really like to see a proper public domain, fully machine readable text of the Chapman Homer. Project Gutenberg doesn't have one. There are free, full editions of Chapman's Homer in Google Books, but they are scans and not OCRed, they aren't searchable so they are difficult to use for research. They are freely downloadable, for example, you can download a PDF of an 1885 edition from the Harvard Library at the bottom of this page.
posted by charlie don't surf at 11:30 PM on July 12, 2011 [2 favorites]

"Red Sox beat Yanks 5–4 on Chapman's Homer"
posted by chavenet at 12:25 AM on July 13, 2011 [1 favorite]

Was it his spirit, by spirits taught to write
Above a mortal pitch, that struck me dead?

Besides possibly identifying Chapman as the rival poet of the sonnets, one of the many sonnets/influences that hints towards the Marlovian hypothesis ...
posted by iotic at 1:18 AM on July 13, 2011

anigbrowl and charlie: you are both mistaken. The Princeton edition of 1998 renews the copyright of Allardyce Nicoll's edition of 1957 (published by Routledge in the UK and the Bollingen Foundation in the US; Princeton took over the Bollingen Foundation's backlist in 1969). The copyright covers the text as well as the introduction and scholarly apparatus; this is perfectly normal for critical editions, and entirely in accordance with copyright law.

I agree with you, charlie, about the deplorable behaviour of reprint firms like Kessinger in laying claim to public-domain texts. But this is in no way comparable to the behaviour of scholarly presses like Princeton in renewing (not 'fraudulently extending') copyrights they already own. In his review of the Princeton edition, Colin Burrow wrote: 'This cheap reprint of a scarce and very good edition of a great work is a thing to be welcomed.' It would be nice if you could welcome it too, instead of abusing it.
posted by verstegan at 8:48 AM on July 13, 2011 [3 favorites]

Incidentally, the preface to Chapman's Homer includes one of the earliest recorded usages of the word 'windfucker':

But there is a certaine envious Windfucker, that hovers up and downe, laboriously engrossing al the aire with his luxurious ambition and buzzing into every eare my detraction -- affirming I turne Homer out of the Latine onely, &c -- that sets all his associates and the whole rabble of my maligners on their wings with him to beare about my empaire and poyson my reputation.

(OED: 'Windfucker: (1) a name for the kestrel (cf windhover), (2) fig. as a term of opprobrium'.) The Revd Richard Hooper's 1865 edition of Chapman silently alters this to 'windsucker', which shows why we need modern scholarly editions, and why it's not always a good idea to rely on nineteenth-century editions digitised by Google Books.
posted by verstegan at 10:14 AM on July 13, 2011 [2 favorites]

verstegan, I have been researching this topic for about 5 years, and consulted extensively with copyright lawyers that specialize in copyfraud. Your assertions about copyright law (and even common scholarly publishing practices) are incorrect.

A public domain work can never be put back under copyright, unless it is a derivative work that is transformative in nature. This would apply, for example, to an original translation from a foreign language, but would not apply to a reformatting and retypesetting, that is not considered transformative. Even corrections or modernizations of spelling aren't considered transformative. The text of the Bollingen/Princeton edition does not contain original margin notes or any other "scholarly apparatus" other than line numbers (also non-transformative). Princeton does at least acknowledge the separate copyrights to its preface, while Bollingen didn't. I would be legally allowed to take the Chapman text from the Princeton or Bollingen edition, reproduce it and distribute it as a public domain work, even in an identical facsimile edition retaining their exact typesetting and layout.

While I can welcome additional scholarly commentary from the Princeton and Bollingen editions, and even appreciate a new, clearer typesetting and formatting, I cannot condone the renewal of fraudulently asserted copyrights and charging $30 for a full hardcopy. Princeton, at a minimum, has a moral responsibility to present the public domain material for free, but it presents it via Google Books as a limited reproduction, with pages missing from the Chapman text. The omitted pages make this book an attempt at sole-source pseudocopyright. This places an unnecessary financial burden on users who could use this public domain text. In fact, that is the primary reason this book exists, to profit from the scholarly textbook market. This is precisely the problem with copyfraud, it drives up the cost of higher education, and thus is a drain of resources, rather than an addition of resources. This book is a classic example of copyfraud.
posted by charlie don't surf at 11:21 AM on July 13, 2011 [1 favorite]

Wrong, anigbrowl. Read the copyright notice more carefully. The only material that is copyrightable is the preface and the introduction. The preface is copyrighted 1998 to Garry Wills, separately from the rest of the text, which is fraudulently copyrighted by Princeton University Press in 1984. The copyright 1956 Bollingen Foundation edition is presumably the source of the introduction. They used the copyright on that intro to extend and embrace copyright on the public domain text that followed. This is a common practice in publishing, and it is copyfraud. Read my article on the topic of Copyfraud and you might learn something.

This is total bullshit. It plainly says Copyright renewed by PUP 1984, right after the 1956 Bollingen Foundation copyright statement. this is because prior to 1963 copyrights registrations had to be renewed periodically or they would lapse. After the US became a signatory to the Berne convention this requirement lapsed. See this summary chart of copyright periods as they apply in the US. It has nothing to do with the substance of your article, as internet publishing didn't exist in any meaningful way in 1984 when PUP renewed the 1956 copyright on the preface and introduction (there are two prefaces, the original and another for the paperback edition). It didn't exist in its current form in 1998 either, and the 1998 copyright does not assert rights over the historical work.

Your article is similarly flawed, because while those works are not copyrightable no injury has been done to the public, and therefore no fraud has taken place. Fraud requires more than deceit; it also requires that the fraud victim reasonably rely on the statements of the fraudster and suffer an injury as a result. You would not be a victim of fraud unless you were shaken down for money by someone with such a bogus copyright claim, at which point they are causing you an actual problem.

Sure, these are ripoff publishers who are lying and hoping to make some profit off rubes who buy the book because they see the copyright notice and jump to the wrong conclusion. But there is no law against parting fools from their money. The fact is that you can go to a library or wherever and make your own edition of a public domain work and publish it, so your interests have not been curtailed. Is it inconvenient to have full access delayed by unscrupulous publishers? Certainly, but you don't have a convenience interest. Up to a few years ago the technology to instantly read those old out-of-print books via Kindle or Google books didn't even exist, so essentially you're complaining that the free public service being given away by several major corporations isn't good enough because they're trying to balance open access to their unprecedentedly large online database with a proper legal respect for holders of existing copyrights, and and are erring on the side of limiting access rather than that of infringing on someone's rights. As the determination of copyright/public domain status of a scanned book is not easily automatable, there's a delay while people who understand copyright properly look at copyright claims and give Google/Amazon/whoever the legal green light to ignore the bogus claims.

Note, this complaint wasn't just an excuse to self-link. I'd really like to see a proper public domain, fully machine readable text of the Chapman Homer. Project Gutenberg doesn't have one. There are free, full editions of Chapman's Homer in Google Books, but they are scans and not OCRed, they aren't searchable so they are difficult to use for research. They are freely downloadable, for example, you can download a PDF of an 1885 edition from the Harvard Library at the bottom of this page.

Then source a copy from the library and scan it yourself, OCR it yourself, or get some volunteers or even a kickstarter project together and retype it. You seem to think that not only are you entitled to copy the work free of legal restriction (which is true), you are also entitled to have someone else do the work for you to save you from inconvenience (which is not).
posted by anigbrowl at 11:24 AM on July 13, 2011 [1 favorite]

anigbrowl and charlie: you are both mistaken. The Princeton edition of 1998 renews the copyright of Allardyce Nicoll's edition of 1957 (published by Routledge in the UK and the Bollingen Foundation in the US; Princeton took over the Bollingen Foundation's backlist in 1969). The copyright covers the text as well as the introduction and scholarly apparatus; this is perfectly normal for critical editions, and entirely in accordance with copyright law.

It is entirely in accordance with copyright law as it was at the time of publication, but even that only covers the text insofar as it is presented within the whole work. Reproducing Chapman's text (and only Chapman's text) independently of the work - ie, resetting it in fresh type - would also be entirely in accordance with copyright law.

CDS: Princeton, at a minimum, has a moral responsibility to present the public domain material for free

No it doesn't. The Dean of Princeton can claim to be the sole original author of the work and blast all competing editions as ripoffs produced with the aid of a time machine if s/he feels like it. Since Chapman's work is actually in the public domain, you can safely ignore this and publish the original text in any form you see fit, from free searchable text files to $10,000 limited editions bound in hand-stitched wasphide. You have the exactly the same rights and responsibilities as Princeton with regard to the original text. Princeton is absolutely not required to furnish you with a free copy for your convenience. It would be nice if they did so, but they have no responsibility to do so just because they have exerted generic copyright claims over such works in their scholarly editions.

So, it costs money to buy their scholarly edition, which you would rather not spend? Then don't buy it. If you're on a course and your professors tells you to buy it, then tell the professor that you're not going to spend money on an overpriced scholarly edition, but work from one of the available free scans instead. So it's not as convenient to you because it isn't fully searchable? Cry me a river while I download some free OCR software. Google's OCR software is open source, since it's based on work originally done for the US census. I'm sure you'll find some way to be offended about that too if you try hard enough.
posted by anigbrowl at 11:57 AM on July 13, 2011 [2 favorites]

As interesting as the copyright discussion is, I feel like drawing everyone's attention to another classical text rendered into fourteeners: Goldman's Metamorphoses.

It's an 'Englishing' that is in parts as grand as Chapman's Homer, but falls flat with waffly verbiage in places to pad out the lines to 14 syllables. Which highlights just how artful Chapman's handling of the form is.

Oh, and the Open Library has an entry for Chapman's Homer, PDF | Text

The OCR'd text is horribly mangled, however - so if you feel like having a go, you can pitch in and correct it so there is a searchable edition.
posted by NoiselessPenguin at 12:39 PM on July 13, 2011

Allardyce Nicoll's edition of Chapman's Homer is not a simple reprint of a public-domain text. Nicoll modernised Chapman's spelling and introduced many textual emendations of his own. (The textual notes run to nearly 100 pages in the 1957 edition, which I have in front of me, plus a further 80 pages of commentary and glossary.) Whether this passes the threshold of originality is a disputed question in copyright law. However, Princeton's assertion of copyright in Nicoll's critical edition (where there are at least some grounds for a 'sweat of the brow' justification) is not the same as Kessinger's assertion of copyright in their reprints of old books that they have merely plucked off the library shelf. It is disingenuous to lump these together and label them 'copyfraud' as if there is no difference between them.

I have a personal interest in this as a member of a scholarly team working on a critical edition of a seventeenth-century text. The original work is plainly not in copyright, and already exists in several public-domain versions available on the web. However, it has taken us, collectively, years of work to record all the variants and establish a reliable text. I do not accept that we have a 'moral responsibility' to make the fruits of our labour available for free.
posted by verstegan at 1:27 PM on July 13, 2011 [2 favorites]

It will be nearly impossible for me to respond to so many erroneous ideas about copyright. But let me deal with a few.

It plainly says Copyright renewed by PUP 1984, right after the 1956 Bollingen Foundation copyright statement. this is because prior to 1963 copyrights registrations had to be renewed periodically or they would lapse.

Irrelevant. The 1956 copyright could not cover the original text. Princeton renewed an invalid copyright, which fraudulently embraced and extended the public domain text. This is exactly the sort of bureaucratic error that allows copyfraud to flourish.

Your article is similarly flawed, because while those works are not copyrightable no injury has been done to the public, and therefore no fraud has taken place.

Injury has occurred. This publisher, of anyone, should appreciate the consequences of Princeton University Press v. Michigan Document Services. I worked at a document service like this, the copyrights clearance on course packs is a huge burden, costly, and can take months. It can even be impossible in the case of orphan books. In many cases, the courseware authors will have no choice but to pay a "publisher" for blatantly fraudulent copyrights, even if they use the original PD sources, rather than delay clearance.

Reproducing Chapman's text (and only Chapman's text) independently of the work - ie, resetting it in fresh type - would also be entirely in accordance with copyright law.

Resetting a PD text is not transformative enough to assert a new copyright. Legally, it is not considered transformative at all.

Whether this passes the threshold of originality is a disputed question in copyright law. However, Princeton's assertion of copyright in Nicoll's critical edition (where there are at least some grounds for a 'sweat of the brow' justification) is not the same as Kessinger's assertion of copyright in their reprints of old books that they have merely plucked off the library shelf...I have a personal interest in this as a member of a scholarly team working on a critical edition of a seventeenth-century text.

I suggest you publish your book in the UK where the legal precedents have opened more dispute. The sweat of the brow justification, AFAIK, has never been upheld in the US except on databases like phone books. While you may object to your work being classified as copyfraud compared to blatant bookspammers, the difference is only a matter of degree. I am sure you will be shocked when your critical edition is ganked by another publisher and you discover you have no legal recourse.

It is obvious you guys are not going to believe me, IANAL, but I've worked in publishing for decades and I have researched this to death. So if you're going to argue points of law, I suggest you first vet your concepts with the seminal legal research document on the topic of copyfraud.
posted by charlie don't surf at 10:08 AM on July 14, 2011 [1 favorite]

Irrelevant. The 1956 copyright could not cover the original text.

Nobody is claiming that it does.

Injury has occurred. This publisher, of anyone, should appreciate the consequences of Princeton University Press v. Michigan Document Services.

I guess you missed the part where I said "You would not be a victim of fraud unless you were shaken down for money by someone with such a bogus copyright claim, at which point they are causing you an actual problem." You, as a member of the public, have not been injured at all because you can still help yourself to a copy of Chapman's original text and republish it in any format you wish. I specifically made an exception for the victims of false copyright claims, which you simply ignored.

It is obvious you guys are not going to believe me, IANAL, but I've worked in publishing for decades and I have researched this to death. So if you're going to argue points of law, I suggest you first vet your concepts with the seminal legal research document on the topic of copyfraud.

Astoundingly enough, I already have a copy of this and only partially agree with his analysis. Things like copyright statements on reprints of the constitution stem from the same kind of ignorance as other kinds of copyright abuse, such as misappropriation of internet content in the belief that availability = usability. People slap copyright notices on everything because they think it's like a trademark, and if they fail to do so they won't have any rights in the particular edition they created (as distinct from any public domain content it contains). They slap copyright notices on because they're alrady included in the templates in publishing software. They slap them on because they think it is impressive and official. Half the time they just do it because everyone else is doing it and they haven't really thought about what it means.

I mean, turning false or mistaken claims of copyright on public domain work into an actionable offense? Copyfraud bounty hunters? Ridiculous. Publishers would be required to hunt down and destroy any copies of improperly copyrighted work they had ever issued rather than live with the legal liability. Of course they would not do this; they would set up a new company, transfer the ownership but not the liability, and then tow the existing company out to sea and sink it. What a complete waste of time and effort that would be for both the publishing industry and the public at large. Caveat emptor is the rule here, and with good reason.

Let me point out just one of the inherent flaws in Mazzone's paper. At 1073, note 211, he suggests the simplest theory of copyfraud would parallel the simple fraud theory presented in the 2nd Restatement of Torts (1977, emphasis added):

One who fraudulently makes a misrepresentation of fact, opinion, intention or law for the purpose of inducing another to act or to refrain from action in reliance upon it, is subject to liability to the other in deceit for pecuniary loss caused to him by his justifiable reliance upon the misrepresentation.

...and at 1077, discussing the notion that any member of the public would have standing to call out copyfraud and enjoy a 50% share on a qui tam basis of any resultant fines (emphasis added):

In many cases, the requisite intent would be readily established by inference. For example, because it is impossible to believe that a play by Shakespeare is copyrightable, a publisher who attaches a copyright notice to the play would easily be found to have acted with deceptive intent.

It is indeed impossible to believe that the works of Shakespeare (or Chapman) are copyrightable. That holds true for the potential purchaser as well as the publisher; the concept that works published prior to 1923 are in the public domain is not a complex one, and does not require the advice of a lawyer to understand. So any reliance on assertions of copyright would be wholly unjustified, and bang goes the tort theory, because the law is not there to protect fools from themselves. Just as you should know better than to take my recently-created work and republish it for profit, you should also know that there is such a thing as the public domain and that it includes the great part of our literary heritage.

This paper offers a much better discussion of the issues, and suggests practical rather than fanciful approaches to dealing with the problem. I would like to see copyright terms significantly reduced from their current length, which makes a mockery of the constitutional offering, but copyfraud bounty hunters? GMAFB, that would lead to even greater absurdities of rent-seeking than the system we have now.
posted by anigbrowl at 12:37 PM on July 14, 2011

The sweat of the brow justification, AFAIK, has never been upheld in the US except on databases like phone books.

It specifically does not apply to telephone books, but the threshold of creativity required to gain copyright protection is quite low. The various notes, glossaries and so on of the 1956 edition of Chapman would certainly qualify. See Feist v. Rural (1991). The boundaries of what is copyrightable or not in terms of arranging information which is itself in the public demon are masterfully explored by Judge Richard Posner in Assessment Technologies v. Wiredata (2003). A properly authenticated version of a corrupted and disputed historical text might qualify, to the extent that it depended upon the skill and knowledge of the antiquarian(s) compiling it from a variety of plausible candidates.

Anyone who cared would still be at liberty to republish or reuse those original materials and leave readers to puzzle over questions of consistency by themselves. Contrariwise, a deliberate misarrangement of Hamlet that transformed the play from tragedy to a hilarious comedy by changing the order of scenes or of dialog within a scene could well qualify for copyright protection, despite the 'expression' being limited to the order of presentation.
posted by anigbrowl at 1:12 PM on July 14, 2011

Heh, public demon.
posted by anigbrowl at 4:57 PM on July 14, 2011

Oops, edit error, I misstated the impact of the Feist v. RTS. Of course you knew what I was talking about. But I'm still not buying the modernization of spelling in Chapman as transformative in nature. Having read sections of the text, it seems plainly legible and any changes would be obvious. Specialized knowledge would not be necessary, as would a truly derivative work like a translation from a foreign language, or even an ancient precursor like Old English.

I don't think you can properly assert that Mazzone's paper has "inherent flaws" merely because you don't like his proposed remedies. And it is not a huge leap of logic to assert that I, as a member of the public, have been damaged by fraudulent attempts to monetize public domain works. More specifically, as a college graduate, my education was more costly and my school's resources were squandered dealing with fraudulently asserted copyrights. US taxpayer's money was squandered, supporting educational institutions affected by these frauds. But I'm not going to stretch the chain too tightly.

I think you're disregarding the impact of Princeton v. MDS. I saw its impact from both sides. Even obviously fraudulent copyrights can muddle the issue enough so that it is easier to just pay a miniscule sum to be assured of clearance, than to fight. That's why I called these payments "microfraud," and noted that they are too small to fight. It is pernicious and evil, a death from a thousand cuts. Even worse, I recall one case where we tried to get clearance for an excerpt from a book. It had no date on it, but was obviously well over a hundred years old. It was a small edition from a professor's private collection, no records of its publication could be located. No copyright clearance could be obtained, so he had to omit it from his course packet. He had used this text for many years, until the university cracked down on copyrights when they created their new digital publish-on-demand course packs.

I haven't seen the Brauneis paper before, thanks for the cite. I will examine it.
posted by charlie don't surf at 5:45 PM on July 14, 2011

OK, you make some decent points here, although I would still like to insist on the distinction between a historical text that is long out of copyright, and the supplementary material such as footnotes, glossaries and other annotations which may well be entitled to copyright protection if they are sufficiently comprehensive. Where the two are intimately intertwined, I don't want to see a situation where every footnote or editorial addition requires its own individual copyright statement to distinguish it from the public domain material that surrounds it - although this sort of thing is becoming practical in the digital realm, since metadata is 'cheap' if you get my meaning.

Now true, copyright abuse or overreach can indeed introduce numerous tiny expenses that are not really worth the risk of fighting individually but impose a substantial cost in the aggregate. this is similar to the rational ignorance problem in public choice theory, where it's impossible (and uneconomic) for any one citizen to keep up with every last little thing going on in government, and as a result it's easy for lobbyists to carve out favorable regulations on behalf of their clients. The flaws I see in Mazzone's paper are not so much in his remedies - although I think they're both impractical and naive - but in the weakness of his underlying legal theory. Sure, you could write a law making 'copyfraud' an actionable offense, but as I showed above his proposal is predicated on the unreasonable assumption that the public is incapable of questioning anything it reads (such as an overbroad copyright claim) and thus shifts the entire burden of regulation onto the publishers themselves. This is the informational equivalent of allowing the public to sue matchbook manufacturers for burnt fingers.

Also, I think you go to far in saying it's 'pernicious and evil.' It's selfish, and collectively expensive. But that's an inherent problem in nature: it's competitive, and while it may look placid and harmonious on the surface, we know that nature is often characterized by intense competition and zero-sum outcomes. Instead of applying moral terms to express our preferences (the cow is 'good' because she gives us milk; the snake is 'evil' because he bites our ankles), I think it's more constructive to recognize that publishers and authors have collective interests that are sometimes at odds with those of consumers - and indeed that many people can have a foot in both camps at the same time. Certainly the interests of private and public actors may be in conflict, and the pursuit of those interests may lead to violations of law. But when we start throwing around terms such as good and evil, we're implicitly postulating a single, monolithic, and universally knowable moral code. Such Kantian deontology is attractive on its face, but could only work in the most homogeneous and isolated societies. Strict moral reductionism quickly slides into dogmatism and polarization. If we accept a plurality of legitimate but competing interests which need to be periodically rebalanced, we can start working towards cooperative rather than zero-sum solutions, and antagonists often discover that their a mutual interest in reducing uncertainty is greater than anything that they might need to give up in the process.

One reason I prefer Brauneis' paper over Mazzone's is his advocacy of a better copyright registry system, and the creation of a proper public domain registry. This yields better economies of scale than a private sector solution would, provides greater certainty for producers and consumers (whose identity and interests frequently overlap), gives explicit shape to the public interest and thus leverage to its advocates, and most importantly IMHO, reduces the burden on courts of antagonistic tort litigation.
posted by anigbrowl at 4:08 PM on July 15, 2011

I went through most of that Brauneis paper and he's right, this case doesn't give much support to any side of any copyright argument. And he starts off with Eldred, which is a huge mistake. Eldred is basically irrelevant to the HBTY story. Eldred always pisses me off. I wrote some extensive commentaries to Lessig when he asked for public input while preparing the case. Of course I think those were winning arguments, and of course Lessig didn't use them, so of course I'll never know. After the loss, he lamented that his argument played into his opponent's hands, and he failed to use arguments that could have won. Oopsie.

Anyway, I think you've gone a bit adrift, I don't feel the need to argue the nature of good and evil when I'm just making a case for banal, everyday evil. Note my example of the professor who could not get clearance for a PD work, so he dropped it from his courses. I think it can be asserted that removing existing scholarship from the educational system is replacing knowledge with ignorance. To me, that's pretty clearly evil, if perhaps not Capital E Evil.

But perhaps there is room for a meta argument on the nature of truth here. Brauneis argues for a registry not just of copyrights, but public domain works. That is impossible. As in the case of the professor's mysterious book, unknown PD works are discovered constantly. We can perhaps prove a work is copyrighted, but in cases like that undated book, it is hard to prove it is not copyrighted. It's hard to prove a negative. We could make a perfect registry of copyrighted materials and assume everything not on it is PD, but that doesn't work either. The Copyright Office can really only keep track of expiring copyright registrations. And that wouldn't even cover all the works entering the public domain. Under the doctrine of common law copyright, all new original works are copyrighted, even if not registered. No registry could ever keep up with the amount of newly copyrighted materials. Therefore, no registry could ever certify all expiring copyrighted materials that become PD works. These days, particularly after the Princeton v. MDS decision, institutions are erring on the side of caution and assuming any work not provably PD is copyrighted. Copyfraud publishers like Kessenger profit by muddling the issue, making uncontested works into falsely copyrighted ones. This spoils the environment for works that are not provably PD, even if the rights are uncontested.

Unfortunately, there are private groups trying to implement Brauneis' solution with their own databases, notably Google and Creative Commons. Private interests should not be ursurping Constitutional powers granted to government. Copyrights, patents, and the like, are government grants of limited monopoly. Obviously this is the intersection between private and public interests, and there are unintended consequences. which incites private interests to meddle to enhance their own interests. I prefer Mazzone's direction, empowering and giving incentive to the public to act to protect its own public domain interests, in lieu of government action. The Copyright Office is supposed to be administering the public's interests, but the violations of those interests are usually so minor that the fraudsters can fly right under the radar. IMHO, that's the true role of government, it aggregates the public's interests and acts on them, even if they are too small for individuals to protect their rights.

BTW, I note that a new Register of Copyrights, Maria Pallante, has just been appointed. Let us hope that a new broom sweeps clean.
posted by charlie don't surf at 8:08 PM on July 15, 2011