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Happy Wayzgoose!

Happy Wayzgoose, everyone!

You do celebrate Wayzgoose, don’t you?

wayzgooseWazgoose was a holiday originally celebrated by printers. Master printers would hold a celebration for their journeymen and apprentices as the season turned from summer to fall. At times, the day included pranks inflicted on members of the print shop who had breached some norm, often not replacing letter blocks in their proper places. Yeah, that guy had it coming on Wayzgoose.

Traditionally, printers celebrated Wayzgoose on August 24th though the reason for using that date is a source of some debate. Some say it was because August 24th is St. Bartholomew’s Day, and old St. Barty is the patron saint of printers and bookbinders. Others claim that August 24th was the date Gutenberg finished the first printing of the bible, but that August 24th was Gutenberg’s completion date lacks any historical evidence.

The word itself was most likely derived from an English phonetic spelling of a dutch term. Early English printers were heavily influenced by the Dutch; many of them would have learned their craft from Dutch printers.

Today, the term ‘wayzgoose’ typically denotes celebrations relating to or held by those involved with  printing, books, or bookmaking – whether it be printing societies or bookstores or schools or museums or municipalities – and is not linked to any particular date.

So — Happy Wayzgoose!

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The printing press is mightier than a thousand swords – and how that gave rise to copyright

The movable type printing press is oft cited as playing a role in the religious revolutions of the 16th and 17th centuries. The technology to print books and pamphlets created an ability to circulate ideas previously limited by word of mouth transmission and much less efficiently produced media (e.g. hand-transcribed manuscripts). This relationship is fairly well-known.

copyright baby

Congratulations! It’s an author-centered copyright doctrine!

What many people do not know, however, is that this maelstrom of religious upheaval and new printing technologies also gave birth to copyright law.

One of the weapons in the religious struggles in England was the censorship of the religious views by whoever happened to be on the throne at any particular time. The problem that various monarchs ran into was that the same technology that had contributed to these religious struggles also made it very difficult to censor effectively. They simply could not keep pace with the number of books and pamphlets that could be produced with the new printing technology.

So, they enlisted the aid of the Stationer’s Company, the members of the book trade who had received a royal charter to organize into a Company in 1557. English Companies were similar to and had evolved from medieval guilds. The Stationer’s Company was comprised of bookbinders, booksellers, and printers.

During almost the whole period from 1557 to 1709, a time of continuous religious struggle, censorship was a major policy of the English government. This policy made it convenient for the government to give the stationers large powers, which it did in increasing measure, in order to have them serve as policemen of the press.

L. Ray Patterson, Copyright in Historical Perspective

This system of censorship was enabled first by the Star Chamber Decrees of 1566, 1586, and 1637 and then later by the Licensing Act of 1662. The government did not intend to create copyright law with these statutes. Rather, their concern was merely with censoring opposing religious views.

Instead, the Stationer’s Company copyright arose as an offshoot of the powers granted by the government for censorship. In other words, the powers granted to the Stationer’s Company allowed them to create a form of copyright.

They did so as a way of increasing the profitability of their business endeavors by ordering their own internal affairs. Essentially, the members claimed their “copies” – what we call works of authorship. Whichever member registered a particular “copy” would have the exclusive right to print, bind and sell books from that copy. This act was referred to as “entrance” in the register. An entrance in the register* might take the form of:

Owyn Rogers ys lycensed to prynte a ballette Called have pytie on the poore.

(Apparently, it wasn’t “and sometimes Y.” It was “Y all the tyme.”)

These rights were initially enforceable privately within the company, but later grew to be enforceable in courts of law. It is quite likely that some form of copyright existed prior to these censorship efforts and even prior to the royal charter of the Stationer’s Company, but whatever form it took it did not have the full legal standing and scope of what we would view as copyright.

Note that the author was not a part of this picture. Authors were not members of the Stationer’s Company. They were considered “above” commerce. Selling copies of their work was considered improper. They did in fact sell manuscripts to members of the Stationer’s Company, but this relationship maintained the air, if not the reality, of the earlier system of patronage.

So how did the we end up with a governmental copyright that was focused on authors?

For that we have to fast forward to the late 17th and early 18th century. Two changes in what the government was able and willing to do led the members of the Stationer’s Company to seek what became the first copyright statute.

First, the government moved away from a policy of censorship. This threatened to pull the teeth out of the powers that had permitted the Stationer’s Company to create their internal system of copyright. Second, the government became very sensitive to public disapproval of government granted monopolies.

So as the censorship laws expired, the members of the Stationer’s Company had to seek out some way to maintain their economic advantage – and their effective monopoly had given them quite an advantage. In a relatively short period of time, they had moved from an unimportant guild** to one of the wealthiest and most influential.

What they sought from the government was legislation that would enshrine their previously private system into public law.  Importantly, those rights were perpetual. Once a member had rights to a particular copy, they had it forever.

So, how did we get limited-in-time copyrights focused on authors?

That is where the second change comes into play – public animosity toward monopolies.  In that anti-monopoly environment, a fight arose between two groups within the Stationer’s Company – the printers and the booksellers. (The oldest group, the bookbinders, were largely irrelevant at this point.)

One group wanted no copyright while the other wanted a perpetual copyright – one that never expired. The twist is that both groups argued not for their own good, but instead argued on behalf of the “author.” After all, those advocating for a perpetual copyright had a difficult time persuading anyone that a new monopoly should be granted. So instead they appealed to what was in the author’s interest, and once one side made this rhetorical move, the other side followed suit. It was the use of the “good of the author” by both sides to the argument that produced the concept of copyright as an author’s right.

In fact, public sentiment against monopolies was so strong that it took many years for the stationers to get anything enacted. In 1709, the decades-long fight produced the first copyright statute –  commonly referred to as the Statute of Anne, a much snappier name that the actual full title: “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned.”

statute of anne

*Some of the earliest known uses of the actual term “copyright” occurred in the company register. However, such uses were quite rare.

**The Hatter’s Guild was one of the six most powerful guilds. In comparison, the Stationer’s Company would initially have been somewhere down in the forties in terms of ranked importance. Hats were apparently a big deal.

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Copyright Law and the Availability of Books

One of my goals for this blog is to expose writers to other views of copyright law and policy. Writers, in my experience, tend to view copyright as akin property and as having a moral justification – “I created it, therefore I should own it.” I know that is an oversimplification; most writers’ views contain more nuance than that. But it is, I think, an accurate representation of the core of those views.

While one can find a thread of that view, the natural rights view, in copyright law and cases throughout the history of US copyright law, it is not the dominant or explicit justification for copyright in US law. It is a view more commonly associated with the continental European approach to copyright.

The Anglo-American approach to copyright has expressed a different narrative. In most explicit discussion of the theory underlying copyright law, copyright is about incentives. On the surface, this fits with the writer’s view. A creator would not invest the time and effort into writing a book unless the law provided a means to capitalize on that work. And if that were the extent of it, then we wouldn’t see many if any divergences between the natural rights view and the incentive view. However, the incentive view goes deeper when we examine the goals toward which those incentives are pointed.

The enumerated powers in the US Constitution includes the following in Article I, Section 8, Clause 8:

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries

This is commonly referred to as the IP clause and it serves as the basis for federal legislative power covering patent and copyright laws.* Note that it sets forth as the goal “to promote the progress of science and useful arts” and not to promote the creation of works. The Constitution was drafted at the end of the 18th Century, a century featured a long debate in England about copyright and patent law. The Founders would have been quite familiar with the policy arguments.

founding fathersThe goal of the incentive structure set up by copyright law, so it is argued, is to promote benefits to society. That is done primarily by providing creators with economic incentives, but those economic incentives are not the ultimate goal. They are merely a means to an end.

This is where balancing comes in. In pursuit of that end, the economic incentives might be limited and balanced against the good of society. More specifically, copyright is seen as limiting the benefit to society by increasing costs of access to the works and at times reducing access to the works.

A theorist looking at the incentive theory would say that we want to maximize societal benefit. That means a couple of things. First, we should only give the bare minimum of copyright protection necessary to guarantee production, and not one bit more. Of course, there is no single line in the sand so to speak. It is a continuum in which more protection theoretically leads to more works, and less to less. Finding that optimum point for societal benefit is the incentive theorist’s goal. An incentive theorist only gives the bare minimum necessary to insure production because every increase in protection theoretically comes at a cost to society – some times literally, as in the works cost more. Second, most theorists would include not only production of a work but also access to the work as a necessary component of societal benefit. Greater and longer protection can in certain circumstances decrease the availability of a work.

It is this second point – the relationship between copyright law and access to works – that is the subject of a recent study that generated quite a bit of interest in academic copyright circles (and beyond – does The Atlantic qualify as beyond?):

How Copyright Makes Books and Music Disappear (and How Secondary Liability Rules Help Resurrect Old Songs)

by Paul J. Heald

Heald’s study is nicely summarized by Rebecca Rosen in The Atlantic. Her summary features the tagline: “A book published during the presidency of Chester A. Arthur has a greater chance of being in print today than one published during the time of Reagan.” Some high points from the article:

There were as many books available [on Amazon] from the 1910s as there were from the 2000s. The number of books from the 1850s was double the number available from the 1950s. Why? Copyright protections (which cover titles published in 1923 and after) had squashed the market for books from the middle of the 20th century, keeping those titles off shelves and out of the hands of the reading public.

. . .

“Copyright correlates significantly with the disappearance of works rather than with their availability,” Heald writes. “Shortly after works are created and proprietized, they tend to disappear from public view only to reappear in significantly increased numbers when they fall into the public domain and lose their owners.”

. . .

Heald says that the WorldCat research showed, for example, that there were eight times as many books published in the 1980s as in the 1880s, but there are roughly as many titles available on Amazon for the two decades.

With beginning of the semester fully upon me, I haven’t had the time to go through the full study and likely won’t anytime soon. However allow me to play the TL;DNR devil’s advocate.

First, I wonder if the game has changed. Has the recently emerged ability to keep any book in stock without warehousing costs (eBooks, POD) changed what will happen to books in the future? Perhaps this dip is a thing of the past. In pre-Internet days, shelf space was at a premium and the costs of physical books over their lifespans perhaps contributed to the effect seen in the study. In that world, it made sense for publishers to maintain supplies of the most recent books if those were going to produce the most sales in the short-term. And keep in mind, that the lack of these books availability in eBook or POD formats may in large part  be due to the inability of publishers to undertake the digitization process for massive backlists and due to a simple loss of information on who owns the copyrights for the lost books (orphan works).** In a world where maintaining the availability of books is virtually costless, we may not see such a decrease in availability moving forward.

Second, I wonder how much influence school reading lists have on the availability of some of these older works. Is that list of canonical works skewing the data?

Third, even taking this effect into account, it may not indicate that current copyright law’s incentive calculus is off. Even if lengthy copyright duration is reducing the relative availability of works, the net creation and value produced by copyright incentives could still be ideal or at least positive. The number of available works is just one small part of the measurement of copyright’s results.

* Though perhaps counterintuitive to our modern word usage, “science” refers to copyright and “useful arts” refers to patents.

**The orphan works problem and proposed “solutions” could fill several more blog posts.

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Shirtless Writers

A friend shared an article from Open Culture about a shirtless Mark Twain, complete with a bonus link to a gallery of a shirtless Hemingway. Aside from providing these for your viewing pleasure (?), I’ll just point out a few things from the article itself.

1. Note how the article discusses how consciously Twain constructed his public image. Given current technology and current technological practices, that seems both easier and harder for writers today. It is easier in that a writer can reach the public directly with minimal effort. It is harder in that a writer’s every comment (whether thought through or not) has the possibility of being passed around (think viral kerfuffle).

2. Also note that Twain’s public image of the white suit came from a photograph taken when he was testifying before a Congressional committee about copyright in 1906. This would have been a very important time. The then applicable copyright statute was over one hundred years old and in the process of being rewritten.* Three years later, we got the Copyright Act of 1909, which governed until the the Copyright Act of 1976 became effective on January 1, 1978. The multi-year process for passing the act should not be a surprise. The 1976 act was under discussion for more than a decade before finally passing. The influence that prominent writers can bring to bear should not be surprising either. Testimony of authors and artists before Congressional committees is not uncommon.

3. I refuse to be dragged into a discussion of whether New York Times Bestselling author Kevin J. Anderson removed his shirt on a panel at DragonCon last year.

* Major revisions were enacted in 1831 and 1870. Each year between the 1790 Act and the end of Nineteenth Century, an average of two copyright bills were introduced in Congress.

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The First Sale Doctrine: History through Today

One of the current controversies that I want to explore in this blog is the resale of eBooks.

Calm down, everyone. Go to your happy place.


OK, I’m not going to discuss eBook resale directly in this post; instead, I want to lay some of the groundwork for that discussion by providing some basic information about copyright’s first sale doctrine.

If you purchase a BluRay of the Firefly TV series and then give it a friend,* are you a copyright infringer? Is the owner of Redbox a copyright infringer for renting a BluRay disc of The Avengers? What about the proprietor of a used bookstore, or a customer of the same?

Intuitively, you probably know the answer to all of those questions is no. The first sale doctrine is the reason the each of those commonplace activities is not an act of copyright infringement.

A publisher, a department store, and a castaway

Hallie Erminie Rives in a kimono. I don't know why she is in a kimono.

Hallie Erminie Rives in a kimono. I don’t know why she is in a kimono.

At the beginning of the 20th century, Hallie Erminie Rives was a best-selling author as well as being a daughter from one of the oldest families in America and the wife of a prominent diplomat. Her books included Satan Sanderson, The Kingdom of Slender Swords, and The Valiants of Virginia, as well as Smoking Flax, controversial even when published in 1897 for its positive portrayal of a lynching. One of her other novels, The Castaway, was at the center of Bobbs-Merrill Co. v. Strauss et al., doing business as R.H. Macy & Co., the 1908 Supreme Court case that first established the first sale doctrine in the United States.

The original cover. Since the book sells itself about being three men whose lives are ruined, I'm not sure why there is a woman on the cover. Unless it's her fault that ... OK, I'm not going there.

The original cover. Since the book sells itself as telling the story of three men whose lives are ruined, I’m not sure why there is a woman on the cover. Unless it’s her fault that … OK, I’m not going there.

As an aside, the copyright in The Castaway expired a long time ago, meaning it is now in the public domain. That means, among other things, that you can probably find a lot of presses you’ve never heard of offering it for sale on Amazon. Of course, you can also find it available for free here if you want to take a look.

Now, back to the history of the first sale doctrine. OK, maybe not just yet. In the past few days, we’ve all been reading about the Apple decision and the attempts of big publishers to control prices, more specifically about publishers trying to find some way to force Amazon higher than their $9.99 price point for eBooks. Well, I’m sure you didn’t think that was the first time publishers tried to control the prices of their books. The underlying facts in Bobbs-Merrill v. Strauss were strikingly similar at least with respect to each party’s goals. The publisher Bobbs-Merrill wanted to maintain a price point of $1 while the department store Macy’s wanted drive foot traffic to its store by offering popular books at below market prices. Sound familiar?

In an attempt to keep the retail price of its books at a high level, Bobbs-Merrill printed the following just below the copyright notice in The Castaway:

The price of this book at retail is one dollar net. No dealer is licensed to sell it at a lower price, and a sale at a lower price will be treated as an infringement of the copyright.

A Cad? Not sure whether that word choice is less than timeless or AWESOME

A Cad? Not sure whether that word choice is less than timeless or AWESOME

Macy’s purchased the book wholesale and resold them for 89 cents. Bobbs-Merrill in turn sued them for copyright infringement.  Bobbs-Merrill did not allege that Macy’s had copied the book, but rather they alleged that Macy’s had infringed their “right to vend” the copyrighted work.

Most people think of copying when they think of copyright, and certainly the right to exclude others from making unauthorized reproductions is the central right granted to copyright holders. However, there are other rights. The Copyright Act of 1790, the applicable law in 1908, also included the “right to vend” the copyrighted work. The Copyright Act of 1976, the currently applicable copyright law, words this right as the exclusive right to distribute copies of the work.

The Supreme Court rejected Bobbs-Merrill’s argument that Macy’s resale of the book for les than the price specified constituted infringement of the copyright. Instead, they said that the right to vend granted by the copyright statute did not include the right to control resale of copies of the work after those copies were initially sold by the publisher. Note that the Court was explicit about its holding being an interpretation of the Copyright statute and not involving any claim of a contractual obligation created by the language printed in the book or otherwise.

This didn't work.

This didn’t work.

The first sale doctrine today

A year later, the Supreme Court’s holding was codified into the Copyright Act of 1909. The Copyright Act of 1976 also included what became known as the first sale doctrine in section 109:

Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. [106(3) provides for the right of distribution.]

The statute, through later amendments, places some very interesting limitations on the first sale doctrine, as do later cases, particularly those involving shrink-wrap licenses on software. However, I will leave those for later discussions.

The first sale doctrine is often referred to as a doctrine of exhaustion – as in, the copyright holder’s rights in that particular copy are exhausted by the first sale. Another way to think of the first sale doctrine is to think of it as a balancing between two sets of property rights. The copyright owner holds one set of property rights, the copyright rights. The owner of an individual copy of a work holds the other set of property rights, the personal property rights in the physical object itself.

Remember that copyright law and the statute explicitly distinguish between the copyrighted work of authorship (an intangible) and a particular embodiment of that work (a tangible book, disc, print, etc,). The statute, in an apparent attempt to make the wording as confusing as possible, calls these embodiments “copies.” Except in the case of music, which for historical reasons the statute refers to as phonorecords. Don’t get me started on music copyright, the parachute pants of the copyright world.

So the owner of a physical object has personal property rights in that object. Just as copyright gives you a bundle of rights, so too personal property gives you a bundle of rights. One of those rights is the right of alienation. Now, that doesn’t involve bald aliens who get drunk on sour milk. The right of alienation basically means that the owner of property has the right to transfer the property rights to someone else.

So the conflict, and the need for balancing, then comes from the copyright holder’s exclusive right of distribution and the copy owner’s personal property right to alienate the copy. Section 109 and the first sale doctrine resolve that conflict. The copyright holder does have the exclusive right to distribute any copies of the work, but once the copyright holder has parted ways with a particular copy, the right of distribution no longer applies to that particular copy. The distribution right is exhausted by the first sale. Note that even though we call it the first ‘sale’ doctrine, the relevant distribution is any transfer of ownership whether it is a sale or a gift.

That’s the first sale doctrine in a nutshell. Hopefully, that will provide a foundation for later discussions of whether the first sale doctrine applies to virtual objects, such as eBooks.

*One of the greatest things a friend can do, by the way.

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